Request By:
Hon. J. Stewart Wheeler
Attorney at Law
P.O. Box 328
Russellville, KY 42276
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth A. Myerscough, Assistant Attorney General, Special Prosecutions Division, 909 Leawood Drive, Frankfort, KY 40601, (502) 564-2348
You advise you find an apparent inconsistency between KRS 533.060(2) and 533.030 concerning a Circuit Court's ability to probate, shock probate, or conditionally discharge a defendant when the current criminal act for which the defendant was convicted occurred while the defendant was on parole or probation. A close reading of the two statutes in question reveals no conflict. KRS 533.060(2) prohibits probation, shock probation or conditional discharge in the above factual situation.
KRS 533.020 grants the Court power to sentence a defendant to probation or conditional discharge in lieu of imprisonment. "Conditions of probation shall be imposed as provided in KRS 533.030 . . ." KRS 533.020(1). KRS 533.030 merely lists conditions which may be imposed upon a defendant placed upon probation or conditional discharge. It is not an exhaustive list, merely suggestive. KRS 533.030 does not grant the Court unbridled authority to determine which defendants may be probated or conditionally discharged; it merely speaks to conditions (among others within the Court's discretion) which may be imposed upon a sentence of probation or discharge.
KRS 533.010, 533.020 and 533.060 address the issue of which defendants are eligible for probation or conditional discharge. KRS 533.010(1) states "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 this chapter." (Emphasis added). At first glance, it appears any defendant who is not under penalty of death may be eligible for probation or conditional discharge. However, probation or conditional discharge is specifically limited by other provisions in the chapter. The entire chapter must be examined to determine if a defendant qualifies for probation or conditional discharge. As stated earlier, KRS 533.020 allows a Court to sentence a person to probation or conditional discharge if the individual "is not sentenced to imprisonment" . This provision does not consider the threshold requirements of an individual's eligibility for probation or conditional discharge; rather, it discusses the alternatives of probation or discharge once the decision not to imprison is made. KRS 533.060 exempts certain offenders from eligibility for probation, shock probation or conditional discharge.
KRS 533.060(2) states:
When a person has been convicted of a felony and is committed to a correctional facility maintained by the bureau of corrections and released on parole, probation, shock probation or conditional discharge and is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock probation, or conditional discharge, such person shall not be eligible for probation, shock probation or conditional discharge and the period of confinement for that felony shall not run concurrently with any other sentence.
The above language clearly prohibits probation or conditional discharge in the fact situation you pose. This provision is not inconsistent with any other provision of Chapter 533. Rather KRS 533.060 reflects the policy enunciated in KRS 533.010 Criteria for utilizing chapter which recognizes ". . . that imprisonment is necessary for protection of the public because: (a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime." The defendant you describe has proven to be a risk to public protection by committing another offense while on parole, probation, or conditional discharge.
I hope this answers your questions concerning construction of KRS 533.020 and .060(2). If I can be of further service, please contact me at the address or number below.