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Whitcomb v. Commonwealth

Supreme Court of Kentucky

February 20, 2014

TARA LYNN WHITCOMB, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

Released for Publication March 13, 2014.

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-000346-MR. FAYETTE CIRCUIT COURT NO. 00-CR-00016-002.

FOR APPELLANT: Samuel N. Potter, Assistant Public Advocate, Department of Public Advocacy.

FOR APPELLEE: Jack Conway, Attorney General, James Daryl Havey, Assistant Attorney General, Andrea Leigh Mattingly, Assistant Commonwealth's Attorney, Office of the Fayette Commonwealth's Attorney.

OPINION

Page 418

CUNNINGHAM, JUSTICE.

On January 21, 2000, Appellant, Tara Lynn Whitcomb, pled guilty in the Fayette Circuit Court to one count of theft by deception over $300.00. On February 11, 2000, the trial court sentenced Appellant to a one-year term of imprisonment, probated for a period of five years. The trial court agreed to allow Appellant to serve her probation in Harrison County. Appellant, however, failed to report to her Harrison County probation officer. Consequently, on March 20, 2000, the trial court issued a warrant for Appellant's arrest.

The warrant remained active, yet unserved, for nearly eleven years. The record is devoid of information pertaining to whether law enforcement attempted to locate Appellant during this eleven-year period. Nonetheless, on January 14, 2011, Appellant was finally served with the arrest warrant during a traffic stop.

A probation revocation hearing was held on February 10, 2011. The trial court, citing Kentucky Revised Statute (" KRS" ) 533.020, believed Appellant's period of probation had already expired. Accordingly, the trial court determined that it did not retain jurisdiction to revoke Appellant's probation based on this Court's decision in Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010). As a result, the trial court entered an order dismissing the Commonwealth's motion to revoke Appellant's probation.

On May 25, 2012, the Court of Appeals reversed the trial court's order. In formulating its conclusion, the Court of Appeals relied heavily on dicta found in Conrad . Particularly, in Conrad, we stated that the doctrine of estoppel may in the future prevent intentional absconders from asserting a jurisdictional argument. 315 S.W.3d at 317. Since the Court of Appeals believed Appellant intentionally absconded, she was barred from claiming that her probationary period had expired. We granted discretionary review.

We first acknowledge that KRS 533.020(1) allows for the trial court to revoke a defendant's probation if he or she " commits an additional offense or violates a condition [of the probation]." Even with this broad revocation power, a trial court may not revoke a defendant's probation if the probationary period has expired. Conrad, 315 S.W.3d 313. To illustrate, in Conrad the Commonwealth moved to revoke the defendant's probation nine days prior to the expiration of his probationary period. Id. at 315. However, the trial court scheduled the revocation hearing approximately one month after the defendant's

Page 419

probationary period ended. Id. This Court held that, once the period of probation had expired, the court no longer retained jurisdiction to hold a revocation hearing or to revoke the defendant's probation. Id.

Whether Conrad applies to the case before us hinges on whether Appellant was discharged from her probation before the revocation hearing took place. KRS 533.020(4) details the time limitations of one's period of probation, along with the requirements which allow for the probation to be automatically discharged, i.e., ...


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