Devore v. Com.

CourtKentucky Supreme Court
Writing for the CourtSTEPHENS; LEIBSON; AKER
PartiesGarnett Eugene DEVORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date19 January 1984

Page 829

662 S.W.2d 829
Garnett Eugene DEVORE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
Jan. 19, 1984.

Jack Emory Farley, Public Advocate, Rodney McDaniel, Asst. Public Advocate, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., Penny R. Warren, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

The issue we address on this appeal is whether the maximum sentence length set out in KRS 532.110(1)(c) is applicable when the defendant is on parole (or other forms of early release or probation) when he commits subsequent felonies under the aegis of KRS 533.060(2).

Appellant, while on parole from at least one prior felony, was indicted, tried and convicted of one count of second degree burglary, a class "C" felony; one count of felony theft, a class "D" felony; three counts of knowingly receiving stolen property; a class "D" felony, and one count of first degree criminal trespass, a class "D" felony. He was sentenced to a total of 35 years imprisonment.

At the sentencing phase of the bifurcated trial, appellant was convicted of five counts of being a persistent felony offender, first degree. His sentence was enhanced to fifteen years imprisonment on each count. The trial court ordered that each sentence be served consecutively, and further adjudged that those sentences were to be served consecutively with a five year term imposed for a separate charge of knowingly receiving stolen property. Therefore, appellant's total prison time is eighty years. He appeals as a matter of right.

Appellant urges six grounds for reversal of his conviction. We have carefully examined all of them and find that only one merits discussion in this opinion.

That one relates to, as we have said, the length of his sentence. KRS 532.110(1)(c) states as follows:

Page 830

(1) When 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for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, such multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:

(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed.

The effect of this statute is that when multiple sentences are imposed on a defendant for more than one crime, that such sentences while permitted to run concurrently or consecutively, may not exceed, in total time of imprisonment, the maximum time authorized by statute for the highest class of crime for which any of the sentences are imposed. In the present case, appellant's "highest class" of crime was second degree burglary, a class "C" felony. The maximum length of sentence therefore is 20 years. KRS 532.080(6)(b).

Appellant urges that the plain terms of the statute and the mandate of Tabor v. Commonwealth, Ky., 613 S.W.2d 133 (1981), require us to remand the case to the trial court and direct that a maximum sentence of 20 years be entered. We do not agree.

In Tabor, the appellant was convicted of robbery in the second degree and of being a persistent felon, first degree. He received a twenty year enhanced sentence. The trial court ordered that the twenty year sentence on the persistent felony offender conviction run consecutively with a prior, entirely separate sentence on a persistent felony offender, first degree, conviction. We reviewed the conviction and directed, in the event of another trial with similar results, that the two sentences be served concurrently. We literally applied the terms of KRS 532.110(1)(c), recognizing the legislative intent to put a cap on the total years imprisonment given in cases of multiple conviction.

That statute was enacted by the General Assembly in 1974. The issue in the present case is brought into focus by the fact that in 1974, the General Assembly also enacted KRS 532.110(3), which is as follows:

When a defendant is sentenced to imprisonment for a crime committed while on parole in this state [which appellant was] such term of imprisonment and any period of reimprisonment that the board of parole may require the defendant to serve upon the revocation of his parole shall run...

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32 practice notes
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...offense committed while an accused is on probation or parole to run concurrently with another sentence. See Devore v. Commonwealth, Ky., 662 S.W.2d 829, 831 (1984). This is further indication of the General Assembly's intent in enacting KRS We cannot agree with Cosby's position that the phr......
  • Jackson v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 16, 1984
    ...which any sentence was imposed was decided against him by James v. Commonwealth, Ky., 647 S.W.2d 794 (1983); Devore v. Commonwealth, Ky., 662 S.W.2d 829 We find no merit in the remaining allegations of error. Jackson's conviction for theft by unlawful taking of a radio scanner from Roger St......
  • Manns v. Beckstrom, Case Nos. 15-6025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 9, 2017
    ...to run consecutively. On direct appeal, Manns raised five issues but did not argue that the court should overrule Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), which required the trial judge to impose consecutive sentences. The Kentucky Supreme Court overruled Devore seventeen days aft......
  • Lawson V. Com., No. 2000-SC-0024-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 2002
    ...precludes ordering a sentence for a conviction of escape to run concurrently with any other sentence); Devore v. Commonwealth, Ky., 662 S.W.2d 829, 831 (1984) (KRS 533.060(2) precludes ordering a sentence for a conviction of an offense committed while on parole to run concurrently with any ......
  • Request a trial to view additional results
32 cases
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...offense committed while an accused is on probation or parole to run concurrently with another sentence. See Devore v. Commonwealth, Ky., 662 S.W.2d 829, 831 (1984). This is further indication of the General Assembly's intent in enacting KRS We cannot agree with Cosby's position that the phr......
  • Jackson v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 16, 1984
    ...which any sentence was imposed was decided against him by James v. Commonwealth, Ky., 647 S.W.2d 794 (1983); Devore v. Commonwealth, Ky., 662 S.W.2d 829 We find no merit in the remaining allegations of error. Jackson's conviction for theft by unlawful taking of a radio scanner from Roger St......
  • Manns v. Beckstrom, Case Nos. 15-6025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 9, 2017
    ...to run consecutively. On direct appeal, Manns raised five issues but did not argue that the court should overrule Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), which required the trial judge to impose consecutive sentences. The Kentucky Supreme Court overruled Devore seventeen days aft......
  • Lawson V. Com., No. 2000-SC-0024-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 2002
    ...precludes ordering a sentence for a conviction of escape to run concurrently with any other sentence); Devore v. Commonwealth, Ky., 662 S.W.2d 829, 831 (1984) (KRS 533.060(2) precludes ordering a sentence for a conviction of an offense committed while on parole to run concurrently with any ......
  • Request a trial to view additional results

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