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Commonwealth of Kentucky v. Latisha Vibbert

April 12, 2013

COMMONWEALTH OF KENTUCKY APPELLANT
v.
LATISHA VIBBERT
APPELLEE



APPEAL FROM BARREN CIRCUIT COURT HONORABLE PHIL PATTON, JUDGE ACTION NO. 11-CR-00338

The opinion of the court was delivered by: Dixon, Judge

RENDERED: APRIL 12, 2013; 10:00 A.M. TO BE PUBLISHED

OPINION

REVERSING AND REMANDING

BEFORE: CAPERTON, COMBS AND DIXON, JUDGES.

Appellant, the Commonwealth of Kentucky, appeals from an order of the Barren Circuit Court dismissing an indictment against Appellee, Latisha Vibbert, for first-degree possession of a controlled substance, a Class D felony. For the reasons set forth herein, we reverse and remand this matter for further proceedings.

Vibbert was arrested on August 3, 2011, and charged with possession of a controlled substance, methamphetamine. In September 2011, Vibbert and the Barren County Attorney negotiated an agreement pursuant to Kentucky Revised Statutes (KRS) 218A.14151, which was approved by the Barren District Court, whereby she would participate in the "You Turn Deferred Prosecution" program and, upon successful completion of the program, the possession charge would be dismissed. Nevertheless, on October 20, 2011, a Barren County Grand Jury indicted her for the same offense that resulted in the deferred prosecution in the district court. Vibbert thereafter filed a motion in the Barren Circuit Court to dismiss the indictment. The circuit court granted the motion, holding:

The agreement made by the Commonwealth in district court to defer prosecution and approved by the District Judge is binding on the Commonwealth. This Court is mindful of the provisions of House Bill 463 and the public policy established by the Kentucky General Assembly therein. The public policy of the Commonwealth is to address substance abuse issues sooner rather than later and deferred prosecution is part of that effort.

The Commonwealth thereafter appealed to this Court.

The Commonwealth argues on appeal that deferred prosecution as provided for in KRS 218A.14151 can only be entered into between a defendant and a Commonwealth's attorney, and is solely within the jurisdiction of the circuit court. Accordingly, it is the Commonwealth's position that since the district court herein had no authority to approve the agreement at issue, the subsequent indictment was appropriate. Vibbert responds that either a county or Commonwealth's attorney is authorized under KRS 218A.14151 to negotiate a deferred prosecution agreement, and that such is within the jurisdiction of the district court. Further, Vibbert maintains that public policy demands that the Commonwealth abide by the agreement it negotiated. We must disagree.

As a preliminary matter, Vibbert argues that the Commonwealth did not raise the scope and authority of KRS 218A.14151 in the circuit court and, thus, has not preserved this issue for appellate review. However, whether the district court can approve a deferred prosecution agreement concerns subject matter jurisdiction. "[S]ince subject matter jurisdiction concerns the very nature and origins of a court's power "'to do anything at all[,]'" it "'cannot be born of waiver, consent or estoppel[,]'" and may be raised at any time." Hisle v. Lexington-- Fayette Urban County Government, 258 S.W.3d 422, 430-31 (Ky. App. 2008) (citations omitted). See also Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky. 1996). Furthermore, it is well established that a judgment entered by a court without subject matter jurisdiction is void. Id. at 48.

KRS 218A.14151, enacted in 2011 as part of the Correction Reform Bill HB 463, provides:

(1) A defendant charged with his or her first or second offense under KRS 218A.1415 may enter a deferred prosecution program subject to the following provisions:

(a) The defendant requests deferred prosecution in writing on an application created under KRS ...


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