Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fultz v. Commonwealth

Court of Appeals of Kentucky

August 3, 2018

GEORGE SAMUEL FULTZ APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON REMAND FROM SUPREME COURT OF KENTUCKY 2017-SC-000314-DG

          APPEAL FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE ACTION NO. 14-CR-00142

          BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky.

          BEFORE: COMBS, J. LAMBERT, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE.

         Appellant, Samuel Fultz, appeals from an Order of Judgment and Sentence following his conviction on drug and traffic-related charges. He argues that the Rowan Circuit Court erred when it overruled his motion to suppress evidence seized as the result of a traffic stop, the initiation of which Fultz contends lacked sufficient reasonable suspicion and probable cause. Fultz also challenges the trial court's order that he pay fines because the court previously found Fultz to be indigent for purposes of representation by the Department of Public Advocacy (DPA).

         In our prior opinion, this Court found substantial evidence to support the trial court's conclusion that the officer had reasonable suspicion of criminal activity to support the traffic stop, and that the officer did not unreasonably prolong the traffic stop during the brief period before Fultz gave permission to search the vehicle. Therefore, we held that the trial court properly denied his motion to suppress. We also held that the trial court was authorized to impose court costs on Fultz. However, we concluded that the trial court was not authorized to impose fines on Fultz's misdemeanor convictions given his indigent status, and reversed the sentence imposing the fines.

         The Commonwealth filed a motion seeking discretionary review of the latter holding. On June 6, 2018, the Supreme Court of Kentucky granted the motion and remanded the matter to this Court for further consideration of the Court's decision in Commonwealth v. Moore, 545 S.W.3d 848 (Ky. 2018). Having reviewed the reasoning and holding in Moore, we conclude that the trial court was authorized to impose a misdemeanor fine on Fultz for the offense of excessive window tinting, but it was not authorized to impose a fine on him for possession of drug paraphernalia. Because neither the Commonwealth nor Fultz sought discretionary review on the other issues raised in our prior opinion, we re-adopt the holding on those matters as if fully set forth herein. Hence, we affirm the judgment of conviction, the sentence imposing the court costs, and the $100 fine for excessive window tinting, but we reverse the sentence imposing the $500 fine for possession of drug paraphernalia.

         Background

         The facts of this case were fully set forth in our prior opinion. For purposes of this appeal, the following facts are relevant. Following a traffic stop on July 30, 2014, Fultz was charged with Trafficking in a Controlled Substance (Two or More Grams Heroin), Possession of Drug Paraphernalia, and Excessive/Improper Window Tinting. Fultz filed a motion to suppress the evidence seized during the stop, arguing that the officer's stop was pretextual, without probable cause, and was impermissibly extended after it became apparent that there was no traffic violation.

         On May 12, 2015, the trial court conducted an evidentiary hearing on the motion at which the sole witness was Kentucky State Police Trooper Steve Mirus. Based upon Trooper Mirus's testimony, the trial court denied the motion to suppress. Thereafter, a jury convicted Fultz of the charged offenses. Based on the jury's verdict, the trial court sentenced Fultz to ten-years' imprisonment. The court also imposed fines of $100 for excessive window tinting and $500 for possession of drug paraphernalia. Finally, the court ordered Fultz to pay court costs. Fultz's appointed counsel requested that the trial court suspend the misdemeanor fines, since he had been previously found to be indigent. The trial court denied the motion, but ordered Fultz to pay the $100 fine within one year of his release from prison and the $500 fine within eighteen months of his release.

         On appeal, this Court affirmed the trial court's denial of Fultz's motion to suppress and the imposition of court costs. Since those issues were not appealed further, we have no reason to address them again. However, this Court held that KRS 534.040 precluded imposition of the misdemeanor fines because the trial court had ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.