Curtsinger v. Com.
| Decision Date | 22 April 1977 |
| Citation | 549 S.W.2d 515 |
| Parties | Donnie Ruby CURTSINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack E. Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
On February 20, 1968 appellant Donnie Ruby Curtsinger was adjudged guilty of possession of burglar's tools by the Jefferson Circuit Court and given the maximum ten (10) year sentence for that offense. KRS 433.120(2). Rendition of judgment was, however, withheld pursuant to KRS 439.260 and appellant was placed upon probation for the maximum five year period allowed by KRS 439.270. Within this statutory period the trial court, on June 22, 1972, had an opportunity to revoke appellant's probation but chose not to do so. Rather the trial court sought to extend the probationary period on this 1968 conviction beyond February 20, 1973, the statutory maximum.
Appellant remained on probation continuously from February 20, 1968 until February 20, 1973. On the latter date no warrant issued by the court was pending against him and his probation had not been revoked. Therefore, by operation of statute, the Jefferson Circuit Court lost jurisdiction to revoke appellant's probation on February 20, 1973. KRS 439.270, Gossett v. Commonwealth, Ky., 384 S.W.2d 308 (1964). Cf. KRS 533.020(3). See also 18 U.S.C. Sec. 3651; United States v. Strada, 503 F.2d 1081 (8 Cir., 1974); Green v. Commonwealth, Ky., 400 S.W.2d 206 (1966).
On January 20, 1975 the Jefferson Circuit Court entered an order revoking appellant's 1968 probation and requiring him to serve the sentence imposed by the judgment of conviction rendered against him in 1968. That order is void because the court lost its jurisdiction on February 20, 1973. Appellant's RCr 11.42 motion to vacate the sentence he is serving pursuant to that order of revocation should have been granted.
The judgment is reversed and the cause is remanded with directions to set aside and hold for naught the order of January 20, 1975.
All concur.
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...439.270 provided that the period of probation fixed by the court "shall not exceed five years . . ." Appellant cites Curtsinger v. Commonwealth, Ky., 549 S.W.2d 515 (1977) to support his contention that the order of the court had the effect of extending the probationary period beyond the fi......