Helton v. Stivers , 1965 Ky. LEXIS 281 ( 1965 )

CULLEN, Commissioner.

The petition of Howard T. Helton, a prisoner in the state penitentiary, states that the respondent circuit judge has not complied with the order of this Court, made on December 18, 1964, in Helton v. Stivers, Ky., 385 S.W.2d 172, requiring him to rule on petitioner’s motion under RCr 11.42 to vacate the judgment by which he was sentenced to the penitentiary. The petition seeks various mandatory orders.

By way of response to the petition Judge Stivers has filed a copy of an order dated December 21, 1964, overruling the RCr 11.42 motion. Attached is a certificate of the clerk of the Knox Circuit Court that on the day of entry of the order he mailed a copy to Helton. We accept this as a satisfactory showing of compliance with our order of December 18.

The facts recited in the respondent’s order of December 21 (which facts we assume appear on the face of the trial record) show that Helton’s claim of invalidity of the judgment of conviction, by reason of his having been tried in absentia, was not sustainable. The order recites that Helton, having been present at the start of the trial, escaped during a recess and thereafter the trial was continued to verdict in his absence. However, judgment and sentence were not pronounced until Helton had been recaptured and brought back into court. Under RCr 8.28, and under the holding in Collier v. Commonwealth, 110 Ky. 516, 62 S.W. 4, the procedure was proper and valid.

The petition is denied.