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Cole v. Commonwealth

Court of Appeals of Kentucky

April 5, 2019

KENNETH COLE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 14-CR-00093

          BRIEF FOR APPELLANT: Roy Alyette Durham II Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

          OPINION

          THOMPSON, L., JUDGE

         Kenneth Cole ("Appellant") appeals from an order of the Perry Circuit Court denying his motion to satisfy a DUI service fee with jail credit accumulated under Kentucky Rules of Criminal Procedure ("RCr") 4.58. Appellant argues that RCr 4.58 and Kentucky Revised Statute ("KRS") 189A.050 do not preclude the applicability of jail credit to the DUI service fee, and that the Circuit Court erred in failing to so rule. For the reasons addressed below, we find no error and AFFIRM the order on appeal.

         Facts and Procedural History

         On December 4, 2014, Appellant entered a plea of guilty in Perry Circuit Court to charges of Operating a Motor Vehicle under the Influence first offense, two counts of Possession of Controlled Substance, second degree, and Prescription Drugs Not in the Proper Container. In accordance with the plea, the Perry Circuit Court rendered a judgment and sentenced Appellant to a term of twelve months' imprisonment. The sentence was probated for twenty-four months. In addition, the Court ordered Appellant to pay court costs of $130, a court facilities fee of $25, a fine of $300, and a DUI service fee of $375. Appellant later violated his probation and was ordered to serve the sentence.

         On September 29, 2017, Appellant filed a motion to satisfy his $375 DUI service fee with pre-trial jail credits under RCr 4.58. A hearing on the motion was conducted, where Appellant, through counsel, argued that the DUI service fee was a fine and thus subject to satisfaction with jail credits. By way of an order rendered on October 30, 2017, the circuit court denied the motion and this appeal followed.

         Argument and Analysis

         Appellant now argues that the Perry Circuit Court committed reversible error in denying his motion to satisfy the DUI service fee with pretrial jail credits. Appellant notes that RCr 4.58 allows for a credit of $5.00 for each day incarcerated prior to conviction to be applied to a fine levied on the conviction of the offense. Because, in his view, the $375 DUI service fee is a "fine," he maintains that the circuit court erred in failing to apply the credit to the service fee. While acknowledging that the criminal rules and the statutory law do not expressly address whether the DUI service fee is a "fine" for purposes of RCr 4.58, Appellant states that his $340 credit representing sixty-eight days of preconviction incarceration would largely satisfy the $375 DUI service fee. He seeks an opinion reversing the order on appeal, and remanding the matter for application of the credit to the service fee.

RCr 4.58 states,
Any person incarcerated on a bailable offense who does not supply bail or is not otherwise released and against whom a fine is levied on conviction of such offense should be allowed a credit of $5.00 for each day so incarcerated prior to conviction except that in no case shall the amount so allowed or credited exceed the amount of the fine.

         The question for our consideration is whether the Perry Circuit Court erred in concluding that the DUI service fee is not a "fine" pursuant to RCr 4.58, and therefore is not subject to the ...


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