Curry v. Com.
| Decision Date | 21 May 1965 |
| Citation | 390 S.W.2d 891 |
| Parties | George William CURRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
George William Curry, pro se.
Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
DAVIS, Commissioner.
Appellant was sentenced to imprisonment for life upon his conviction in the Jefferson Circuit Court under the Habitual Criminal Act. KRS 431.190. He had been indicted for violation of KRS 433.180 (dwelling-housebreaking) and his prior felony convictions were included in the indictment under the Habitual Criminal Act.
The present appeal arises from the circuit court's order overruling appellant's motion to vacate that conviction. RCr 11.42. Appellant proceeds in forma pauperis.
In the RCr 11.42 motion appellant asserted a number of vaporous grounds upon which he deemed himself entitled to relief; we need not advert to them. King v. Com., Ky., 387 S.W.2d 582.
However, it is our view that certain allegations of the RCr 11.42 motion were sufficiently specific and pertinent to require a hearing; the circuit court denied the motion without formal hearing, and for that reason we must reverse and remand for an appropriate hearing.
The appellant asserted in his motion to vacate that his court-appointed counsel 'refused to appeal the case, or to make a motion for new trial.' If this did occur, it may well be that appellant is entitled to some affirmative relief. Whether it occurred is not determinable from the face of the record, and may be ascertained only by a hearing.
Appellant alleged in his 11.42 motion that the jury returned into open court with a verdict fixing his punishment at confinement in the penitentiary for two years (the minimum sentence for dwelling-housebreaking) KRS 433.180. According to appellant, the trial judge then thanked and discharged the jury, and called appellant before the bench to be sentenced. Then the attorney for the prosecution interposed an objection to the court's sentencing appellant for just two years, and insisted that the jury be reassembled for further consideration. Whereupon, appellant was remanded to a holdover for safekeeping while one of the jurors was located and returned to the court room. According to appellant, an hour or more elapsed while the missing juror was relocated. Then it was, appellant alleges, that the reassembled jury was directed by the court to reconsider its verdict. It was after the reconsideration that the life sentence was imposed.
For the Commonwealth it is averred that nothing of the sort occurred. It is explained that the trial court supplied the jury with forms of verdicts under which the jury might have (1) found appellant not guilty, or (2) found him guilty of Count No. 1,...
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Tipton v. Com.
...for an appeal which otherwise would have been foreclosed as too late. See McIntosh v. Commonwealth, Ky., 368 S.W.2d 331; Curry v. Commonwealth, Ky., 390 S.W.2d 891. The appellants have failed to point to any asserted error at the original trial of which complaint could have been made upon a......
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Curry v. Com.
...RCr 11.42 motion to vacate sentence, and is a sequel to a prior appearance of this matter before this court. See Curry v. Commonwealth, Ky., 390 S.W.2d 891. Pursuant to the mandate of this court, the trial court appointed counsel for appellant and afforded him an evidentiary hearing on the ......
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Short v. Com.
...of counsel was the promise of his counsel to appeal his conviction, and his failure to do so. This Court held in Curry v. Commonwealth, Ky., 390 S.W.2d 891 (1965), that an allegation that court-appointed counsel refused to take an appeal requires a hearing under RCr 11.42. We do not apply t......