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Commonwealth v. Dulin

Supreme Court of Kentucky

April 17, 2014

COMMONWEALTH OF KENTUCKY, APPELLANT
v.
DERICK DULIN, APPELLEE

Released for Publication May 8, 2014.

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-000602-MR. JEFFERSON CIRCUIT COURT NO. 02-CR-002369.

FOR APPELLANT: Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General.

FOR APPELLEE: Joseph R. Eggert.

OPINION OF THE COURT BY JUSTICE VENTERS. All sitting. All concur.

OPINION

Page 171

VENTERS, JUSTICE.

Appellant, Commonwealth of Kentucky, appeals from an opinion of the Court of Appeals holding that KRS 533.040(2) did not extend the original expiration date of Appellee's, Derick Dulin, term of probation and, therefore, the Jefferson Circuit Court lost jurisdiction to revoke Dulin's probation when it purported to do so by an order entered in September 2008. The Court of Appeals concluded that the circuit court erred by denying Dulin's motion for post-judgment relief from the revocation order pursuant to CR 60.02 and RCr 10.26.

In denying Dulin's motion, the circuit court reasoned that he had expressly agreed to an extension of his probationary term beyond its original expiration, and thereby waived any objection he might otherwise have to a subsequent revocation. The circuit court relied upon our opinion in Commonwealth v. Griffin, 942 S.W.2d 289, 44 4 Ky. L. Summary 15 (Ky. 1997). In Griffin, we held that the five-year statutory limitation[1] on a probationary period can be waived by a probationer's knowing and voluntary request for extension of his probationary period in exchange for avoiding revocation of probation and imprisonment, and when that occurs, the trial court's jurisdiction is extended beyond the original probationary period.[2]

Dulin, in support of the Court of Appeals' decision reversing the circuit court, relies principally upon Conrad v. Evridge, 315 S.W.3d 313 (2010), where this Court held that a trial court loses jurisdiction to revoke an order of probation upon the expiration of the previously established probationary period, even if the motion to revoke is filed prior to the expiration date and the defendant stipulates to the violation, so long as the defendant is not responsible for delaying the revocation hearing beyond the expiration date. The Court of Appeals concluded that Conrad rather than Griffin was the controlling authority because Dulin's waiver occurred

Page 172

after the term of probation had expired. Accordingly, the Court of Appeals vacated the circuit court's order on the grounds that Dulin's sentence was discharged upon his completion of the originally established five-year probationary period. Integral to the Court of Appeals' opinion is its conclusion that KRS 533.040(2) did not extend Dulin's term of probation beyond its original expiration date.

We granted discretionary review to examine the provisions of KRS 533.040(2) with respect to tolling the expiration of a term of probation. Because we conclude from Dulin's specific circumstances that KRS 533.040(2) did operate to extend his term of probation by tolling its expiration for at least six months beyond the original expiration date, we must further conclude that the circuit court was not divested of jurisdiction to revoke his probation. Therefore, we reverse the Court of Appeals and reinstate the sentence imposed by the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Based upon his plea agreement, Dulin was sentenced on April 23, 2003, to twenty-years' imprisonment for possession of a controlled substance and being a first-degree persistent felony offender (PFO). In accordance with the plea agreement, the trial court suspended the imposition of the sentence of imprisonment and placed Dulin on supervised probation for the maximum term of five years.[3]

In August 2004, Dulin's probation officer reported to the circuit court that Dulin had violated several conditions of his probation, the earliest of which was testing positive for marijuana on April 15, 2004. For this reason a probation revocation hearing was held on October 20, 2004. Dulin admitted the violation, and in lieu of revoking probation and imposing the twenty-year term of imprisonment, the ...


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