Request By:
Captain Terry E. Abbott
Jefferson County Department of Corrections
600 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David A. Sexton, Assistant Attorney General
This letter is in response to your letter of September 26, 1988 to Attorney General Frederic J. Cowan. Specifically, you requested an opinion of the Office of the Attorney General concerning interpretation of what constitutes "a violent felony offense" as that term is used in the statutes defining eligibility for home incarceration. KRS 532.200(3); 532.230.
As you related to us in your letter to the Office of the Attorney General you are responsible for coordinating alternative programs for the Jefferson County Department of Corrections among which is a home incarceration program. The statutory authority for such a program is found at KRS 532.210(1) which provides that a defendant convicted of a misdemeanor "may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration . . ." Such petitions for home incarceration may be made throughout the term of the misdemeanant's sentence. Id.
In your letter to the Office of the Attorney General you correctly stated that KRS 532.230 provides, in part, that "No person convicted of a violent felony offense shall be eligible for home incarceration. " You then go on to ask whether a violent felony conviction, regardless of the age of conviction, precludes eligibility or whether the violent felony conviction must have been received within the preceding five years. For the reasons set forth below, we conclude that the offender must have been convicted of a "violent felony offense" within five years of the current conviction.
What constitutes a "violent felony offense," for purposes of KRS 532.230, is found at KRS 532.200(3):
(3) "Violent felony offense" means an offense defined in KRS 507.020 (murder), 507.030 (manslaughter in the first degree), 508.010 (assault in the first degree), 509.040 (kidnapping), 510.040 (rape in the first degree), 510.070 (sodomy in the first degree), 510.110 (sexual abuse in the first degree), 511.020 (burglary in the first degree), 513.020 (arson in the first degree), 513.030 (arson in the second degree) , 513.040 (arson in the third degree), 515.020 (robbery in the first degree), 515.030 (robbery in the second degree) , 520.020 (escape in the first degree), any criminal attempt to commit any such offense (KRS 506.010), or conviction as a persistent felony offender (KRS 532.080) when the offender has a felony conviction for any of the above-listed offenses within the five (5) year period preceding the date of the latest conviction;
In Bailey v. Reeves, Ky., 662 S.W.2d 832, 834 (1984), the Supreme Court of Kentucky held that it would accord the words of a statute their plain meaning unless to do so would lead to an absurd or unreasonable conclusion. We believe that the words of KRS 532.200(3) are clear and free of any absurdity or unreasonableness. For purposes or eligibility for the home incarceration program a "violent felony offense" is defined as a conviction for any of the specifically enumerated offenses, any criminal attempt to commit any of the enumerated offenses or conviction as a persistent felony offender provided the conviction for any of these listed offenses was within 5 years of the latest conviction. Thus, the prior conviction must fall into one of the listed offenses set out in KRS 532.200(3) and that conviction must have been within five years of the latest conviction for it to constitute a "violent felony offense" as used in the home incarceration statutes.
We sincerely hope this letter has provided you some assistance with your inquiry to the Office of the Attorney General.