Commonwealth v. Tapp

OPINION OF THE COURT BY

JUSTICE KELLER

The circuit court revoked David Tapp’s probation. On appeal, the Court of Appeals vacated the circuit court’s order, and the Commonwealth appeals from that Court’s opinion. With a critical difference in analysis and for the reasons set forth below, we affirm.

I. BACKGROUND.

On January 6, 2012, Tapp entered a guilty plea to several drug offenses. On February 2, 2012, the court sentenced Tapp to one year in prison, probated for one year. The court conditioned Tapp’s probation, in pertinent part, on Tapp remaining free of any additional criminal charges.

On January 16, 2013, Tapp’s probation officer filed a “Violation of Supervision Report” indicating that Tapp had received traffic citations in August 2012 and November 2012 and asking the court to admonish Tapp. Before the court could act on this report, the probation officer filed a second report on January 25, 2013, noting that Tapp had again been cited for a traffic violation. The officer recommended that the court use its discretion in determining how to sanction Tapp. On January 28, 2013, the Commonwealth’s Attorney filed a motion asking the court: to issue a criminal summons for Tapp; and to review Tapp’s probation for possible revocation.¹ The court issued a bench warrant for Tapp’s arrest and scheduled Tapp to appear at its next available docket, which was February 7, 2013. On February 7, 2013, Tapp appeared and requested a revocation hearing for the earliest possible date, which was February 12, 2013.

At the probation hearing, Tapp argued that the court lacked jurisdiction to hear the matter because his probationary period expired on February 2, 2013. The Commonwealth argued that the warrant issued by the court before February 2, 2013, tolled the expiration period. While Tapp did not dispute that a pending warrant could toll the probationary period, he argued that the warrant stopped tolling the probationary period after it was served on January 31, 2013. The court disagreed with Tapp, finding that a warrant remains pending until there “has been a disposition, following a hearing when required by statute, of the matter for which the warrant was issued initially.” Having found that it retained jurisdiction, the court held an evidentiary hearing and revoked Tapp’s probation. Tapp appealed to the Court of Appeals, which reversed, finding that the warrant had expired when served, thus depriving the court of jurisdiction. We granted the Commonwealth’s motion for discretionary review.

II. STANDARD OF REVIEW.

Because this matter turns on the interpretation of two statutes, our review is de novo. Hearn v. Commonwealth, 80 S.W.3d 432, 434 (Ky.2002).

III. ANALYSIS.

The sole issue before us is whether Tapp’s probationary period expired before the trial court held the revocation hearing. Kentucky Revised Statute (KRS) 533.020(4) provides, in pertinent part, that a period of probation expires and a defendant “shall be deemed finally discharged [from probation] provided no warrant issued by the court is pending against him.” As noted above, the trial court determined that a warrant remains pending until there has been a disposition of the matter for which the warrant was issued. In this case, that would have been the conclusion of the revocation hearing.

We agree with the trial court that a warrant remains pending beyond the time of service. However, we disagree that it remains pending until disposition of the matter for which it was issued.

Pursuant to Kentucky Rule of Criminal Procedure (RCr) 2.06(1), a warrant has two objectives—arresting the defendant and bringing the defendant before the court. A warrant remains pending until both objectives have been met—the defendant has been arrested and the defendant has been brought before the court. Thus, the warrant in this case remained pending until Tapp was brought before the court, which occurred on February 7, 2013. Once Tapp made that court appearance, his warrant was no longer pending, and at that point the trial court no longer had the authority to revoke Tapp’s probation, notwithstanding the analysis and proposed procedure we set forth below. As noted by the trial court, this interpretation of RCr 2.06(1) could, in a vacuum, lead to absurd results, because, as happened here, a warrant that is served near the end of the probationary period may well leave the court with no time to hold a revocation hearing. A number of our trial judges preside over multiple counties and work diligently to travel and cover dockets in those counties. Even with the best and most efficient time management on the part of the trial court, the aforementioned absurd result will inevitably occur.

However, KRS 533.020(4) provides a guard against such absurd results, stating, in pertinent part, that: “[T]he period of probation ... shall be fixed by the court and at any time may be extended or shortened by duly entered court order.” The trial court read KRS 533.020(4) together with KRS 533.050(2) and concluded that it could not extend the period of Tapp’s probation without a hearing. We understand how the court could read these statutes as it did.' However, we disagree with the court’s well-intentioned conclusion that it was required to hold a hearing before extending Tapp’s probationary period for two reasons.

First, KRS 533.020(4) does not require a court to hold a hearing before extending the period of probation. Second, although KRS 533.050(2) requires the court to hold a hearing before modifying the conditions of probation, the length of the probationary period is not a statutorily defined condition of probation. “Conditions” of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure the defendant will lead a law-abiding life or to assist him to do so.” KRS 533.030(1). Such conditions include the avoidance of certain persons and places, the requirement to obtain suitable employment and to support dependents, payment of costs and restitution, submitting to drug and alcohol testing, etc. KRS 533.030(2). Because the period of probation is not a condition of probation, KRS 533.050(2) does not mandate a hearing prior to extending it.

However, a court cannot arbitrarily extend the probationary period. A probationer is entitled to due process protections, one of which is a “duly entered court order.” KRS 533.020(4). In this instance, a duly entered court order is one supported by probable cause, which requires “facts and circumstances ‘sufficient to warrant a prudent man in believing that the [probationer] had committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Furthermore, because such an extension is likely to occur without a hearing, due process demands that any extension be of limited duration. Therefore, the trial court may only extend the period of probation without a hearing until its next available criminal docket or as soon as practical thereafter.

Here, Tapp’s probation was conditioned upon his remaining free of criminal charges. Tapp’s probation and- parole officer reported to the court that Tapp had been charged three times with driving on a suspended or revoked license. Those reports provided sufficient probable cause to support an extension of Tapp’s probationary period until the court could hold a revocation hearing. Thus, if the trial court had extended Tapp’s probationary period at his first post-arrest appearance on February 7, 2013, it would have retained jurisdiction to revoke his probation at the February 12, 2013 hearing. However, because the trial court understandably did not extend Tapp’s probationary period at his first post-arrest appearance, the court lost that jurisdiction.

IV. CONCLUSION.

The language of KRS 533.020(4) is clear: probation is automatically discharged upon completion of a probationary period unless it has been revoked or an arrest warrant is pending. If neither condition exists, the trial court loses jurisdiction both to revoke and to modify the conditions of probation. A warrant remains “pending” until the defendant is brought before the court at which time, given probable cause to do so, the court may extend the probationary period for a reasonable time until a revocation hearing can be held. Because Tapp’s probationary period was not extended, the court lost jurisdiction to revoke his probation. However, this Opinion will give the necessary guidance to the next trial court faced with similar circumstances.

For the above stated reasons, the decision of the Court of Appeals is affirmed.

All sitting. Minton, C.J., Hughes, Keller and Noble, JJ., concur. Wright, J., dissents by separate opinion in which Cunningham and Venters, JJ., join.

1 . The Commonwealth mistakenly referred to diversion rather than probation in its motion, as did the probation report. However, it is undisputed that the court had probated rather than diverted Tapp’s sentence.