Clayborn v. Commonwealth , 1985 Ky. App. LEXIS 702 ( 1985 )

WILHOIT, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion reversing the trial court’s revocation of probation and remanding for further proceedings.

With respect to the denial of the appellant’s separate proceeding pursuant to CR 60.02(f), it appears that he was seeking to amend the original order granting probation by substituting an insurance carrier as payee of restitution in place of the victim. I do not believe that KRS 533.030 contemplates that restitution shall be made to any entity other than the victim or a governmental agency. In fact, it appears to me that to the extent a private insurance company has paid the victim for medical expenses, loss of earnings, etc., restitution to the victim can only be the difference between the actual expenses he has or will pay and the amount the insurance company pays to or for him. The trial court cannot be faulted for refusing to name an ineligible payee to receive restitution and thus did not err in denying the CR 60.02(f) motion.

The appellant may well be entitled to some relief under CR 60.02(e), for example, if all or part of the victim’s medical expenses, loss of earnings, etc., have now been paid by a private insurance company. That question has not yet been presented to the trial court and cannot be decided by us.