Moore v. Com., No. 98-SC-271-DG

CourtKentucky Supreme Court
Writing for the CourtWINTERSHEIMER; LAMBERT; JOHNSTONE; JOHNSTONE
Citation990 S.W.2d 618
Docket NumberNo. 98-SC-271-DG
Decision Date22 April 1999
PartiesJames MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 618

990 S.W.2d 618
James MOORE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 98-SC-271-DG.
Supreme Court of Kentucky.
April 22, 1999.

Page 619

Daniel T. Goyette, Jefferson District Public Defender, of counsel, Bruce P. Hackett, Deputy Appellate Defender, Jefferson District Public Defender, Louisville, KY, for appellant.

A.B. Chandler III, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which held that the circuit court properly sentenced Moore to consecutive prison terms pursuant to KRS 533.060(3).

The issue presented is whether KRS 533.060(3) mandates consecutive sentences under the phrase "awaiting trial" when a defendant commits a second offense after he has been indicted but not yet arraigned.

Moore entered a conditional plea of guilty to indictment No. 95-CR-3191, which is the conviction under appeal, and was sentenced to a five-year prison term to run consecutive to his seven-year prison term which had resulted from his conviction under indictment No. 96-CR-0634. On December 19, 1995, the Jefferson County Grand Jury indicted Moore for eight counts of third-degree burglary, criminal possession of a forged instrument, three counts of theft by unlawful taking under $300, two counts of giving a police officer a false name or address and as a Persistent Felony Offender II.

The basis for these charges occurred in August, October and November of 1995. Moore had been arrested on five separate occasions and had been repeatedly arraigned in district court on the charges contained in indictment No. 95-CR-3191. In each case, he was released on bond only to commit new offenses. He was arraigned in circuit court under indictment No. 95-CR-3191 on January 4, 1996 and entered a plea of Not Guilty. On December 21, 1995, two days after his indictment, he committed another burglary offense for which he was later charged in Indictment No. 96-CR-0634, upon which charges he was tried by a jury and convicted of burglary and as a persistent felony offender. He was sentenced to seven years in prison.

A jury trial was also held in May of 1996 regarding indictment No. 95-CR-3191, but a mistrial was declared. On July 17, 1996, he entered a plea agreement in 95-CR-3191, in which he pled guilty to one count of third-degree burglary with a recommendation from the prosecution of a five-year sentence. He was sentenced to five years, but the circuit judge determined that such sentence was to run consecutively with the seven year sentence imposed earlier. He properly reserved his right, pursuant to RCr 8.09, to challenge the circuit court's ruling that the sentences were required to run consecutively.

The Court of Appeals affirmed the judgment of the circuit court in all respects, and this Court granted discretionary review because the case presents a question of first impression in regard to the application of the sentencing statute.

KRS 533.060(3) reads as follows:

When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with the confinement for the offense for which the person is awaiting trial.

Moore's argument is that the trial court committed reversible error when it

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ruled that consecutive sentences were required by the statute because he could not have been "awaiting trial" until he was arraigned on the first indictment and that he was not...

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15 practice notes
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 24 Febrero 2000
    ...931 S.W.2d 446 (1996); Whalen v. Commonwealth, Ky. App., 891 S.W.2d 86 (1995), overruled on other grounds, Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). 2. Death Qualification of Jury. Appellant claims it was error to excuse six prospective jurors because they could not consider imposi......
  • Hudson v. Com., No. 2005-SC-0120-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Mayo 2006
    ...(Ky.App.1995) (defendant failed to disclose testimony absent witness would provide), overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999). Cf. Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976) (though denial of continuance was improper in rape case where defense ......
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2004
    ...a 2-1 opinion, upheld the circuit court's decision regarding the sentencing issue in view of our opinion in Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). Although the issue presented in Moore concerned a defendant who committed a criminal offense after he had been indicted but not yet ......
  • Pearce v. Univ. of Louisville, 2011-SC-000756-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Diciembre 2014
    ...a justifiable cause for being late would negate the apparent violation of policy.7 Overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999).1 See, e.g., KRS 90.190 (pertaining to cities of the first class); KRS 95.450 (pertaining to second- and third-class cities and ur......
  • Request a trial to view additional results
15 cases
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 24 Febrero 2000
    ...931 S.W.2d 446 (1996); Whalen v. Commonwealth, Ky. App., 891 S.W.2d 86 (1995), overruled on other grounds, Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). 2. Death Qualification of Jury. Appellant claims it was error to excuse six prospective jurors because they could not consider imposi......
  • Hudson v. Com., No. 2005-SC-0120-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Mayo 2006
    ...(Ky.App.1995) (defendant failed to disclose testimony absent witness would provide), overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999). Cf. Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976) (though denial of continuance was improper in rape case where defense ......
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2004
    ...a 2-1 opinion, upheld the circuit court's decision regarding the sentencing issue in view of our opinion in Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). Although the issue presented in Moore concerned a defendant who committed a criminal offense after he had been indicted but not yet ......
  • Pearce v. Univ. of Louisville, 2011-SC-000756-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Diciembre 2014
    ...a justifiable cause for being late would negate the apparent violation of policy.7 Overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999).1 See, e.g., KRS 90.190 (pertaining to cities of the first class); KRS 95.450 (pertaining to second- and third-class cities and ur......
  • Request a trial to view additional results

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