Request By:
Terry Carl, Kenton County Jailer
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Sam Flynn,Assistant Attorney General
Opinion of the Attorney General
Kenton County Jailer, Terry Carl, has requested an opinion of this office as to whether KRS 532.120(3) permits a county jailer to credit time served in misdemeanor cases absent an order from the sentencing judge to credit time-served. For the reasons set forth below, we find that the language of KRS 532.120(3) mandates that the sentencing judge credit time-served in all non-felony cases, including all misdemeanor cases. Thus, a county jailer is not permitted to credit time-served in misdemeanor cases absent an order from the sentencing court.
The language of KRS 532.120(3) provides :
Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases . If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.
(emphasis added.)
Prior to the General Assembly amending it in 2011, KRS 523.120(3) placed the obligation upon the trial court to credit time served in all cases, felony and non-felony.
King v. Commonwealth, 2013 WL 1789860, *1 (Apr. 25, 2013) (un-published). The 2011 amendments demonstrate the General Assembly's express intent to create a distinction in KRS 532.120(3) between felony sentences and sentences in "all other cases" for the purpose of who must credit time served to respective offenders. The plain language of the current version of KRS 532.120(3) mandates that the Department of Corrections credit time served "toward service of the maximum term of imprisonment in cases involving a felony sentence . . ." See King, n. 2 (stating "But, effective in July 2012, the General Assembly amended KRS 532.120(3), placing the duty to award the credit on the Department of Corrections."). Thus, the current version of KRS 532.120(3) differentiates between felony sentences and sentences "in all other cases," by mandating that the sentencing court - not the Department of Corrections - credit time served in all non-felony cases.
In summary, we find that the sentencing court has the sole authority and duty to credit time served in all non-felony cases, including misdemeanor cases under KRS 532.120(3). As a result, we find that county jailers have no authority or duty to credit time served in misdemeanor case under KRS 532.120(3), absent an order from the sentencing court.