FROM NELSON CIRCUIT COURT HONORABLE CHARLES C. SIMMS, III,
JUDGE ACTION NO. 05-CR-00033
FOR APPELLANT: Roy A. Durham Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
William Robert Long, Jr. Assistant Attorney General
BEFORE: COMBS, D. LAMBERT AND SMALLWOOD, JUDGES.
William Jensen appeals from an order of the Nelson Circuit
Court which revoked his probation and reinstated a ten-year
sentence. We hold that the trial court lacked jurisdiction to
revoke Jensen's probation and therefore, vacate the
court's order and remand.
October 21, 2005, Jensen entered a guilty plea to two counts
of first-degree sexual abuse and two counts of second-degree
unlawful transaction with a minor. Pursuant to the plea
agreement, Jensen was sentenced to five years on each count
to run consecutively for a total imprisonment term of twenty
years; however, Jensen was ordered to serve ten years for the
sexual abuse charges, but the unlawful transaction with a
minor charges were probated for five years.
was released from prison on December 1, 2010, after serving
his sentence for the sexual abuse charges. Jensen's
probated sentence began on that date and was scheduled to end
on December 1, 2015. After his release in 2010, Jensen was
arrested multiple times for violating the terms of his
probation and for new criminal charges. Three violation
reports were filed and each requested the revocation of
Jensen's probated sentence. These reports were filed on
November 21, 2012, August 2, 2013, and November 4, 2016. An
arrest warrant was issued on August 5, 2015, but Jensen was
not arrested until October 19, 2016.
appeared in the Nelson Circuit Court on November 3, 2016, and
counsel was appointed. A probation revocation hearing was
scheduled for later that month, but was rescheduled multiple
times. Eventually, a probation revocation hearing was held on
March 2, 2017. After hearing evidence, the trial court
revoked Jensen's probation and this appeal followed.
raises two arguments on appeal, but we need only address the
first as it requires us to vacate the order revoking his
probation. Jensen argues that the trial court did not have
jurisdiction to revoke his probation because his probated
sentence ended before the revocation hearing took place. This
issue is unpreserved, but since it is a sentencing issue, and
those issues are jurisdictional, it may be raised for the
first time on appeal. Cummings v. Commonwealth, 226
S.W.3d 62, 66 (Ky. 2007). Jurisdictional issues are reviewed
de novo. Appalachian Reg'l Healthcare, Inc.
v. Coleman, 239 S.W.3d 49, 54 (Ky. 2007).
Revised Statute (KRS) 533.020(4) states:
The period of probation, probation with an alternative
sentence, or conditional discharge shall be fixed by the
court and at any time may be extended or shortened by duly
entered court order. Such period, with extensions thereof,
shall not exceed five (5) years, or the time necessary to
complete restitution, whichever is longer, upon conviction of
a felony nor two (2) years, or the time necessary to complete
restitution, whichever is longer, upon conviction of a
misdemeanor. Upon completion of the probationary period,
probation with an alternative sentence, or the period of
conditional discharge, the defendant shall be deemed finally
discharged, provided no warrant issued by the court is
pending against him, and probation, probation with an
alternative sentence, or conditional discharge has not been
issue for our consideration is the phrase "provided no
warrant issued by the court is pending against him." If
the warrant was still pending at the time Jensen's
probation was revoked, then the circuit court had
jurisdiction because the probationary period had been
extended by the pending warrant. If the warrant was no longer
pending at the time of the revocation, then the court was
without jurisdiction to act.
case of Commonwealth v. Tapp, 497 S.W.3d 239 (Ky.
2016), is directly on point and controls the outcome of this
case. In Tapp, David Tapp was given a one-year
sentence, probated for one year on February 2, 2012. Tapp
violated the terms of his probation and a bench warrant was
issued. He was brought before the trial court on ...