Stallworth v. Commonwealth , 2003 Ky. LEXIS 83 ( 2003 )

KELLER, Justice,

dissenting,

I respectfully dissent from the majority opinion because, in my view, Appellant cannot bring a matter-of-right appeal to the Supreme Court of Kentucky from a circuit court order revoking a term of shock probation — even if, as a result of that order, Appellant commences (or recommences) service of a twenty (20) year prison sentence. Accordingly, I would vacate as improvidently entered our March 13, 2000 order directing the Marshall Circuit Court Clerk to transmit the record to this Court, dismiss the appeal in this Court, and forward both the notice of appeal and the record to the Court of Appeals for a decision on the merits.

The Kentucky Constitution provides that “[ajppeals from a judgment of the Circuit Court imposing a sentence of death or life imprisonment or imprisonment for twenty years or more shall be taken directly to the Kentucky Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.”¹ Our rules governing criminal appeals mirror the constitutional language,² and provide elsewhere that all other appeals “shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken.”³ Of course, we must avoid tunnel vision as to the “twenty years or more” language because, although an appeal from a judgment of conviction imposing a sentence of twenty (20) years or longer must be appealed to this Court,⁴ our rules do not authorize such an appeal from all orders affecting criminal sentences of “twenty years or more.”⁵

While there is no doubt that, as a result of the trial court’s revocation of his shock probation, Appellant is now serving a twenty (20) year prison sentence, the January 21, 2000 order from which Appellant takes his appeal is not a “judgment ... imposing ... a sentence of twenty years or more.” Kentucky’s Rules of Criminal Procedure identify the nature of a criminal “judgment,”⁶ and the January 21, 2000 order revoking Appellant’s term of shock probation does not meet the qualifications. The judgment in this case was entered on November 20, 1998, and it sentenced Appellant to a ten (10) year prison term, but suspended the imposition of that term by sentencing Appellant to a term of probation.⁷ The sentence was later imposed when the trial court revoked Appellant’s initial probation. Still later, the trial court suspended execution of that previously-imposed sentence when it granted Appellant’s motion for shock probation.⁸ The order from which Appellant appeals is thus simply an order revoking probation, and, although the revocation resulted in a resumption of the sentence, it is not a judgment “imposing a ... sentence of twenty years or more.” The appeal from that order should therefore have been filed in the Court of Appeals.

I find it worthy of mention that the primary authority cited by the majority, Galusha v. Commowealth,⁹ is a Court of Appeals opinion with “virtually identical facts.” In fact, a close inspection reveals that, like Appellant in the case at bar, Galusha also appealed from a probation revocation decision “whereby he was sentenced to, the ‘state penitentiary for a maximum term of 20 years ¹⁰ The Kentucky Court of Appeals and the Kentucky Supreme Court do not have concurrent jurisdiction of appeals. Accordingly, if the Galusha panel had jurisdiction over a direct appeal from an order revoking probation (and leading to a twenty (20) year prison sentence), then this Court cannot have jurisdiction to consider a direct appeal in an identical procedural posture. As I see it, our rules leave only two alternatives: (1) the primary authority upon which the majority opinion’s holding rests was rendered by a Court of Appeals panel without jurisdiction to decide that case; or (2) today’s majority opinion is rendered by a court without jurisdiction to decide this case. For the reasons explained above, the second alternative reflects my views regarding appellate jurisdiction in an appeal from an order revoking probation.

GRAVES, J., joins this dissenting opinion.

1 . KY. CONST. § 110(2)(b).

2 . See RCr 12.02 ("[A]n appeal from a judgment imposing a sentence of death, life imprisonment, or imprisonment for twenty years or more shall be taken directly to the Supreme Court.”).

3 . CR 73.01(2). See also RCr 12.02 ("Civil Rule[] ... 73.01(2) ... shall apply also in criminal actions .... ”).

4 . Shepherd v. Commonwealth, Ky., 739 S.W.2d 540 (1987).

5 . Williams v. Venters, Ky., 550 S.W.2d 547, 548 (1977) (“A judgment or order denying a postconviction motion, however, is not a judgment 'imposing a sentence.’ Hence an appeal from it is addressable to the Court of Appeals.”).

6 . See RCr 11.04.

7 . See Prater v. Commonwealth, Ky., 82 S.W.3d 898, 904 (2002) (explaining the difference between suspension of imposition and suspension of execution).

8 . See KRS 439.265(1) ("[A]ny Circuit Court may ... suspend the further execution of the sentence and place the defendant on probation upon terms the court determines.” (emphasis added)).

9 . Ky.App., 834 S.W.2d 696 (1992).

10 . Id. at 696-7 (emphasis in original).