Gossett v. Com.

• Citation: 384 S.W.2d 308
• Parties: Walter 'Sonny' GOSSETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 20 November 1964
• Court: United States State Supreme Court (Kentucky)

Page 308

384 S.W.2d 308

Walter 'Sonny' GOSSETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 20, 1964.

Fritz Krueger, Somerset, for appellant.

Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.

MOREMEN, Judge.

This is an appeal from a judgment of the Pulaski Circuit Court by which the appellant, Gossett, was sentenced to confinement in the state penitentiary for a period of one year under a charge of false swearing. Appellant contends that about two years prior to the entry of the judgment he had been placed on probation for a period of one year and, at the time the probation was summarily revoked, the probationary period had been completed and the court had no right to enter judgment imposing sentence.

KRS 439.270 (here involved) reads in part: 'Upon completion of the probationary period the defendant shall be deemed finally discharged, provided, no warrant issued by the court is pending against him, and probation has not been revoked.'

At the 1962 February term of court, Gossett was indicted for the offense of false swearing. On March 13, 1962, his case came on to be tried and on the same day (the record contains an obvious typographical error as to the date) the court entered a judgment which stated that Gossett had waived arraignment and had entered a plea of guilty, that a jury had been impaneled, had heard evidence, and, under instructions of the court, had returned a verdict in which appellant was found guilty and his punishment fixed at one year in the state penitentiary. Appellant was returned to the custody of the jailer. It will be noted her that sentence was not imposed in the judgment.

On the same day and on the following page in the Criminal Order Book, this order was entered:

'This matter coming on before the Court on the defendant's motion and grounds for a new trial and the Court takes time, it being agreed by the defendant and his counsel and counsel for the Commonwealth that the defendant, Walter 'Sonny' Gossett, will, within thirty days time after his release from the sentence he is now serving in the Pulaski County Jail, absent himself from Pulaski County, Kentucky, for a period of one year from that date and further he agrees as a condition of this Order that he will not violate the laws of this Commonwealth in any respect.

'In the event that the defendant shall fail to comply with any part of this Order, that is, by removing himself from Pulaski County for a period of one year or by violating any law prior to his removal from this County or if he should return to Pulaski County within a period of one year after having absented himself from this County, then the motion for a new trial will be overruled and the sentence of the Court will be immediately imposed upon this defendant. If, however, he shall comply with the terms of this Order, at the end of one year after his removal from this county, the motion for a new trial will be sustained and this indictment dismissed against him.'

No other order or judgment appears for a period of more than two years. On May 28, 1964, this order was entered:

'It is ordered by the Court that Motion and Grounds for New Trial be and the same are overruled as the court knows the defendant has not complied with the Order of the court entered as of March 13, 1962, and evidence has been submitted to the court that the defendant has not obeyed the law, and it is ordered by the court that a Bench Warrant issue for defendant.'

That order was followed, a few days later, by this judgment:

'The defendant was this day brought into court and being informed of the nature of the indictment on the charge of False Swearing plea and verdict was asked if he had any legal cause to show why judgment should not now be pronounced against him and none being shown, it is adjudged that the defendant be taken by the Sheriff of Pulaski County to the State Reformatory and there confined at hard labor for a period of One year.'

As we have stated, appellant contends that the court had no power to enter the last quoted judgment because, under KRS 439.270, appellant's probationary period was finally discharged. The statutes which deal with the postponement of a judgment and probation of a defendant (KRS 439.250 through 439.300) are few and without detail. Subsection (1) of KRS 439.260 permits a circuit court to 'postpone the...