Jones v. Commonwealth, No. 2007-CA-000058-DG (Ky. App. 2/8/2008)

• Decision Date: 08 February 2008
• Docket Number: No. 2007-CA-000058-DG.,2007-CA-000058-DG.
• Parties: JOSEPH E. JONES, JR. Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: Kentucky Court of Appeals

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JOSEPH E. JONES, JR. Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2007-CA-000058-DG.

Court of Appeals of Kentucky.

February 8, 2008.

On Discretionary Review from Fayette Circuit Court, Honorable Gary D. Payne, Judge, Action No. 06-XX-00019.

Gene Lewter, Lexington, Kentucky, Brief for Appellant.

Gregory D. Stumbo, Attorney General, Elizabeth Bancroft, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.

Before: ACREE, KELLER, and MOORE, Judges.

OPINION

KELLER, Judge:

Joseph E. Jones, Jr. (Jones) appeals from the circuit court's order affirming the district court's order extending Jones's period of probation. The only issue on appeal is whether the district court retained jurisdiction to extend Jones's period of probation. For the reasons set forth below, we affirm.

FACTS

The facts in this case are straightforward and not in dispute. In October of 2003, Jones entered a plea of guilty to misdemeanor theft by unlawful taking, received a sentence of 90 days probated for two years, and was ordered to pay restitution in the amount of $1,700.¹ More than two years later, in December of 2005, Jones's probation officer filed a criminal complaint stating that Jones had failed to pay restitution. In response to that complaint, the district court extended Jones's period of probation. Jones timely appealed to the circuit court, which affirmed the district court. In doing so, the circuit court found that the district court retained jurisdiction to extend Jones's period of probation because Jones had failed to pay restitution. It is from this order that Jones appeals to this Court.

The sole issue raised by Jones is whether a probation officer can file a complaint for a probation violation after the period of probation has expired and thereby obtain a court order extending the probationary period.

STANDARD OF REVIEW

The issue raised by Jones is one of law, which is subject to de novo review. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App. 2001); see also A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App. 1999); and Aubrey v. Office of Attorney General, 994 S.W.2d 516, 518-19 (Ky.App. 1998) (citing American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 458 (Ky. 1964)).

ANALYSIS

KRS Chapter 533 sets forth the statutory scheme regarding probation and conditional discharge. Pursuant to KRS 533.020:

(1) When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court shall place him on probation if he is in need of the supervision, guidance, assistance, or direction that the probation service can provide. Conditions of probation shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation. When setting conditions under this subsection, the court shall not order any defendant to pay incarceration costs or any other cost permitted to be ordered under KRS 533.010 or other statute, except restitution and any costs owed to the Department of Corrections, through the circuit clerk.. . .

(4) The period of probation . . . shall be fixed by the court and at any time may be extended or shortened by duly entered court order. Such period, with extensions thereof, shall not exceed . . . two (2) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a misdemeanor. 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.

KRS 533.030(3) provides that a court shall order a defendant to make restitution to any victim who suffered monetary damage as a result of the defendant's criminal actions. Pursuant to KRS 532.033(8), a judge shall "not release the defendant from probation supervision until restitution has been paid in full and all other aspects of the probation order have been successfully completed."

Jones argues his probationary period automatically ended in October of 2005 when the two year period assessed by the district court expired. In support of this argument, Jones cites to KRS 533.020(4), which provides that a defendant "shall be deemed finally discharged" upon completion of the probationary period. However, Jones fails to take into consideration the first part of KRS 533.020(4) which provides that the probationary period for a misdemeanor is limited to two years "or the time necessary to complete restitution, whichever is longer." Although we would prefer to have a more clear cut record, it is implicit in the district court's judgment and in Jones's plea that his probation was conditioned on the payment of restitution. Therefore, his period of probation was set at...