Request By:
Mr. Bobby E. Miller
Chief of Police, City of Auburn
P.O. Box 465
Auburn, Kentucky 42206
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: William L. Davis, Assistant Attorney General
This is in response to your letter of November 29, 1982, in which you stated the following:
If a subject was charged with Wanton endangerment in the first degree, a Class D-felony, does District Court have jurisdiction in this case? On felony cases do they have to go through District Court before they can go to the grand jury? If someone is indicated on a felony charge by a grand jury, can it be turned back to District Court because the defendant was not tried in District Court first?
KRS 24A.110 states the following:
(1) The district court shall have exclusive jurisdiction to make final disposition of all criminal matters, including violations of county, urban-county, or city ordinances or codes, except:
(a) Offenses denominated by statute as felonies or capital offenses; and
(b) Offenses punishable by death or imprisonment in the penitentiary.
(2) The district court has exclusive jurisdiction to make a final disposition of any charge or a public offense denominated as a misdemeanor or violation, except where the charge is joined with an indictment for a felony, and all violations of county, urban-county, or city ordinances and, prior to trial, to commit the defendant to jail or hold him to bail or other form of pretrial release.
(3) The district court has, concurrent with circuit court, jurisdiction to examine any charge of a public offense denominated as a felony or capital offense or which may be punished by death or imprisonment in the penitentiary and to commit the defendant to jail or hold him to bail or other form of pretrial release.
(4) The district court may, upon motion and for good cause shown, reduce a charge of a felony to a misdemeanor in accordance with the Rules of Criminal Procedure. (Emphasis added.)
Also, the Kentucky Rules of Criminal Procedure (hereinafter RCr) were amended by Kentucky Supreme Court Order 81-5, effective September 1, 1981. RCr 3.07 states:
When a person is brought or appears before a judge having authority to try the offense charged, the judge shall proceed in accordance with Chapters VI-XIII of these Rules. If the judge does not have authority to try the offense charged but does have venue to hold a preliminary hearing, he shall proceed in accordance with the remainder of Chapter III. A defendant who has not been indicted is entitled to a preliminary hearing, unless waived, when charged with an offense requiring an indictment pursuant to Section 12 of the Kentucky Constitution. If the judge does not have authority to try the case or venue to hold the preliminary hearing, he shall order the defendant to be taken before the proper court for further proceedings and may release him on personal recognizance or admit him to bail for his appearance before that court, if the offense is bailable, or commit him to jail to await trial or preliminary hearing. (Emphasis added.)
And RCr 3.10 states:
* * *
(2) If the defendant does not waive the preliminary hearing, such hearing shall be held within a reasonable time but no later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if he is not in custody, provided, however, that the preliminary hearing shall not be held if the defendant is indicated before the date set for the hearing. In the event the preliminary hearing is not held within the above time period, the defendant shall be discharged from custody, and he shall thereafter be proceeded against on that charge by indictment only. Unless the defendant consents to an extension, time limits may be extended by the court only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.
(3) Notwithstanding waiver of the preliminary hearing, at any time before the defendant has been indicted the attorney for the Commonwealth shall, upon demand, be entitled to a preliminary hearing for the purpose of examining witnesses. The defendant may cross-examine the witnesses offered by the Commonwealth. (Emphasis added.)
Further, the Kentucky appellate courts have held that no fundamental rights are denied by the failure to hold a post-indictment preliminary hearing.
Edwards v. Commonwealth, Ky., 500 S.W.2d 396 (1973);
King v. Venters, Ky., 595 S.W.2d 714 (1980). In
King v. Venters, supra, the Kentucky Supreme Court stated:
The purpose of a preliminary hearing, or "examining trial," in this state -- and its only purpose -- is to determine whether there is sufficient evidence to justify detaining the defendant in jail or under bond until the grand jury has an opportunity to act on the charges. No law has been enacted and no constitutional amendment has been adopted that requires an indictment to be founded on probable cause. As a matter of fact, there is no principle under which the grand jury is bound to give any consideration whatever to the showing made in an examining trial. It may rest its conclusions entirely upon evidence independently brought before it.
The ultimate stage of a criminal proceeding designed for the purpose of testing the evidence is the trial on the merits. We do not consider that the fundamental "rights" of a defendant demand a series of mini-trials to be hurdled by the prosecuting authorities before gaining entrance to the main ring. . . . ( Ibid. at 714.)
If we did not say it clearly enough in
Edwards v. Commonwealth, Ky., 500 S.W.2d 396, 398 (1973), we say it again now, that a preliminary hearing, examining trial, or any other "probable cause" inquiry, is not prerequisite to the consideration of a charge by the grand jury or to the validity of an indictment returned pursuant to a "direct submission." Nor can the validity of any indictment, in this state at least, be successfully attacked upon the ground of insufficient evidence. ( Ibid. at 715.)
Additionally, the Kentucky Court of Appeals stated the following in
Commonwealth v. Hamblem, Ky.App., 628 S.W.2d 345 (1981):
This appeal involves a question that has not previously been determined by our Court; that is, whether the issuance of an indictment on a felony charge places sole jurisdiction in the circuit court, thereby terminating jurisdiction in the district court. ( Ibid. at 345.)
Therefore, we hold that once the indictment issued, the district court no longer had power to make a final disposition of the case. See,
Collins v. Swenson, 443 F.2d 329 (Eighth Circuit, 1971). ( Ibid. at 346.)
Based upon the foregoing authorities, it is our opinion that the district court has concurrent jurisdiction with the circuit court to examine a charge of frist degree wanton endangerment, a felony; that felony cases do not have to go through district court before they are presented to the grand jury; and that once a person is indicted on a felony charge by a grand jury, the case cannot be sent back to the district court since the district court no longer has jurisdiction in the case.
Please feel free to contact us if you have further questions.