Com. v. Brasher, No. 91-CA-286-MR

CourtCourt of Appeals of Kentucky
Writing for the CourtHOWERTON
Citation842 S.W.2d 535
PartiesCOMMONWEALTH of Kentucky, Appellant, v. Darren Dwon BRASHER, Appellee.
Docket NumberNo. 91-CA-286-MR
Decision Date18 December 1992

Page 535

842 S.W.2d 535
COMMONWEALTH of Kentucky, Appellant,
v.
Darren Dwon BRASHER, Appellee.
No. 91-CA-286-MR.
Court of Appeals of Kentucky.
Dec. 18, 1992.

Page 536

Chris Gorman, Atty. Gen., Frankfort, Jan Firkins Goose, Special Asst. Atty. Gen., Louisville, for appellant.

Margaret Foley Case, Timothy T. Riddell, Dept. of Public Advocacy, Frankfort, for appellee.

Before EMBERTON, HOWERTON and JOHNSON, JJ.

HOWERTON, Judge.

The Commonwealth appeals from an order running Darren Brasher's sentence in 90-CR-1295 concurrently with a prior sentence in 89-CR-1395. The Commonwealth argues that KRS 533.060(3) requires that the sentence in the second conviction run consecutively with the prior offense. Although we are well aware that the legislature has provided greater penalties for persons who commit multiple offenses, we nevertheless must conclude that the plain language of KRS 533.060(3) provides a gap which makes the statute inapplicable to Brasher's situation. KRS 532.110(1) is therefore applicable, giving the trial judge some discretion in deciding whether to run the sentences concurrently or consecutively. We affirm the order of the Jefferson Circuit Court.

Brasher entered a guilty plea to Indictment 89-CR-1395, and while awaiting sentencing, he committed two offenses of trafficking in cocaine for which he was indicted in Action No. 90-CR-1295. On the earlier indictment, Brasher received a three-year sentence, probated for five years. As to the later indictment which involved two counts, Brasher was sentenced to two, five-year terms to run concurrently. The trial court revoked Brasher's probation and ordered the five-year sentences to run concurrently with the three-year sentence for a total of five years. The Commonwealth argues that the sentences for the two indictments should run consecutively for a total of eight years. KRS 533.060(3) reads:

When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which said person is awaiting trial. (Emphasis added.)

KRS 532.110(1) provides that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked,...

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4 practice notes
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...as set forth in KRS 533.060(3), can be construed to mean "awaiting sentencing." Cosby states that Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992) (overruled to the extent it conflicted with Moore, supra), stands for the proposition that the phrase "awaiting trial" does not mean "awa......
  • Pearce v. Univ. of Louisville, 2011-SC-000756-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • December 18, 2014
    ...two statutes concern the same or similar subject matter, the specific shall prevail over the general.”); Commonwealth v. Brasher, 842 S.W.2d 535, 536 (Ky.App.1992)7 (“Generally, when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the su......
  • Stogner v. Com., No. 1999-CA-001064-MR.
    • United States
    • Court of Appeals of Kentucky
    • August 18, 2000
    ...Inc., Ky., 690 S.W.2d 393, 395 (1985); Fairbanks v. Large, Ky.App., 957 S.W.2d 307, 310 (1997). 15. Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535, 536 16. See e.g., subsection 2 of KRS 433.236 which refers to subsection 1. 17. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Si......
  • Moore v. Com., No. 98-SC-271-DG
    • United States
    • Kentucky Supreme Court
    • April 22, 1999
    ...of Appeals and present arguably an unsettled question as to the meaning of the words "awaiting trial." Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992); Commonwealth v. Wilcoxson, Ky.App., 846 S.W.2d 719 (1993); and Whalen v. Commonwealth, Ky.App., 891 S.W.2d 86 (1995), must be consi......
4 cases
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...as set forth in KRS 533.060(3), can be construed to mean "awaiting sentencing." Cosby states that Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992) (overruled to the extent it conflicted with Moore, supra), stands for the proposition that the phrase "awaiting trial" does not mean "awa......
  • Pearce v. Univ. of Louisville, 2011-SC-000756-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • December 18, 2014
    ...two statutes concern the same or similar subject matter, the specific shall prevail over the general.”); Commonwealth v. Brasher, 842 S.W.2d 535, 536 (Ky.App.1992)7 (“Generally, when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the su......
  • Stogner v. Com., No. 1999-CA-001064-MR.
    • United States
    • Court of Appeals of Kentucky
    • August 18, 2000
    ...Inc., Ky., 690 S.W.2d 393, 395 (1985); Fairbanks v. Large, Ky.App., 957 S.W.2d 307, 310 (1997). 15. Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535, 536 16. See e.g., subsection 2 of KRS 433.236 which refers to subsection 1. 17. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Si......
  • Moore v. Com., No. 98-SC-271-DG
    • United States
    • Kentucky Supreme Court
    • April 22, 1999
    ...of Appeals and present arguably an unsettled question as to the meaning of the words "awaiting trial." Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992); Commonwealth v. Wilcoxson, Ky.App., 846 S.W.2d 719 (1993); and Whalen v. Commonwealth, Ky.App., 891 S.W.2d 86 (1995), must be consi......

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