Commonwealth v. Bustamonte, No. 2003-CA-000502-MR (KY 7/23/2004)
| Decision Date | 23 July 2004 |
| Docket Number | No. 2003-CA-000502-MR.,2003-CA-000502-MR. |
| Parties | COMMONWEALTH OF KENTUCKY Appellant v. JOSE ANTONIO BUSTAMONTE Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
A.B. Chandler, III, Attorney General, Joseph T. Bouvier, Special Assistant Attorney General, Frankfort, KY, Brief for Appellant.
No appellee brief.
Before: GUIDUGLI, JOHNSON and MINTON, Judges.
The Commonwealth of Kentucky appeals from an order of the Fayette Circuit Court reducing the sentence of Jose Antonio Bustamonte (hereinafter "Bustamonte") upon finding a reason of extraordinary nature justifying relief under CR 60.02(f). For the reasons stated herein, we reverse.
On June 22, 2001, Bustamonte entered a plea of guilty in Fayette Circuit Court to two amended misdemeanor charges of theft by failure to make required disposition of property. The charges stemmed from the failure of Bustamonte and a co-defendant to post bail for several individuals after having received money from the individuals' relatives for that purpose. On July 18, 2001, Bustamonte was sentenced to 12 months on each count, to be served concurrently for a total sentence of 12 months.
On June 19, 2002, Bustamonte filed a motion to modify his sentence. As a basis for the motion, he noted that the length of sentence affected his immigration status, and he sought a change in sentence to two six-month terms or, alternatively, a 364-day sentence. The motion was denied, and no appeal was taken.
On December 3, 2002, Bustamonte filed a motion seeking RCr 11.42 relief. He argued that his trial counsel was ineffective in failing to investigate and advise him of the consequences of his plea on his immigration status. Upon determining that she could not grant RCr 11.42 relief, the trial judge stated that she would treat the matter as an oral motion for CR 60.02(f) relief. She then granted the oral motion, reducing his sentence by one day so that his criminal conviction would be treated by immigration authorities as a misdemeanor rather than a felony. A written order to that effect was rendered on March 7, 2003, which reduced Bustamonte's sentence from two concurrent 12-month terms to two concurrent 364-day terms. This appeal followed.
The Commonwealth now argues that the trial court committed reversible error in amending Bustamonte's sentence from two concurrent 12-month terms to two concurrent 364-day terms. It argues that the trial court lost jurisdiction over the final order ten days after its entry, and maintains that the trial court's desire to help Bustamonte with a potential immigration problem is not "a reason of extraordinary nature justifying relief" as set forth in CR 60.02(f). It also argues that Bustamonte has had several bites at the apple on this issue, and that all of the parties are entitled to finality with respect to the enforcement of the judgment. It seeks an order reversing the order on appeal and reinstating the original judgment and sentence.
Having closely examined the record and the law, we find the Commonwealth's argument persuasive and must reverse the order amending Bustamonte's sentence. As is clear from the record, Bustamonte's RCr 11.42 motion was treated as an oral motion for CR 60.02(f) relief. CR 60.02 states, "[O]n motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: . . . (f) any other reason of an extraordinary nature justifying relief." Relief from judgment for "any other reason justifying relief" is not available unless asserted grounds for relief are not encompassed within any of the first five clauses of rule governing relief from judgment. McMurry v. McMurry, Ky.App., 957 S.W.2d 731 (1997). These reasons include mistake, inadvertence, surprise or excusable neglect, newly discovered evidence, perjury or falsified evidence, and fraud. CR 60.02.
It is axiomatic that CR 60.02(f) requires extraordinary circumstances to be shown before relief will be granted. Berry v. Cabinet for Families & Children, Ky., 998 S.W.2d 464 (1999), citing Bishir v. Bishir, Ky., 698 S.W.2d 823 (1985). The standard of review for relief under CR 60.02(f) is whether the trial court abused its discretion. Dull v. George, Ky. App., 982 S.W.2d 227 (1998), citing Bethlehem Minerals Company v. Church and Mullins, Corp., Ky., 887 S.W.2d 327 (1994). "Relief under CR 60.02(f) is available where a clear showing of extraordinary and compelling equities is made." Bishir, 698 S.W.2d at 826. "The...
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