Baumgardner v. Commonwealth , 1985 Ky. App. LEXIS 551 ( 1985 )

LESTER, Judge,

concurring.

I agree with the majority, but I believe several comments should be made for clarification purposes.

Murphy, supra, alluded to by my Brother Combs, does rely upon the two United States Supreme Court cases referred to therein. However, I wish to emphasize that there is one distinction made in the Murphy opinion as between the procedural steps before an administrative officer and a court of competent jurisdiction to the effect:

The Supreme Court was speaking in the terms of a procedure before an independent administrative officer (not a parole officer nor necessarily a judicial officer) to determine if there is probable cause or reasonable ground to believe that an act has been committed constituting violation of conditions of probation, while the second hearing must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. We do not believe the foregoing procedure would apply where a court of competent jurisdiction, such as the Mason Circuit Court, conducted the appropriate inquiry.

As to the second point, I would not be ready to agree to an inference that the same circuit judge could not preside over the trial of the substantive offense and the revocation hearing as well. Even though there may be extenuating circumstances requiring another jurist, I would not be disposed to establish a rule or policy whereby a second judge would be a requirement for probation revocation proceedings.