Smith v. Com.
| Decision Date | 20 March 1986 |
| Docket Number | 85-SC-720-MRG,Nos. 85-SC-407-M,s. 85-SC-407-M |
| Citation | 707 S.W.2d 342 |
| Parties | Fred Matthew SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. (Two Cases). |
| Court | United States State Supreme Court — District of Kentucky |
Udell B. Levy, J. David Niehaus, Daniel T. Goyette, Louisville, for appellant.
David Armstrong, Atty. Gen., C. Lloyd Vest, II, Asst. Atty. Gen., Frankfort, for appellee.
The appellant was convicted of two counts of possession of a controlled substance and sentenced to imprisonment for seven (7) years and a fine of $5,000.00 on each count. On conviction as a persistent felony offender his punishment was enhanced to twenty (20) years on each count. He appeals as a matter of right.
After the conviction, the trial court entered an order of forfeiture of cash found on appellant's person in an amount in excess of $2,000.00. He appealed this order of forfeiture to the Court of Appeals, and we granted transfer to this court. We have consolidated the appeals for disposition in this opinion.
We affirm the judgments of conviction, and we reverse the order of forfeiture.
Appellant contends that he was convicted of possessing a controlled substance, second offense, which in itself resulted in an enhanced punishment and that further enhancement under the persistent felony offender statute was not permissible. Citing Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980).
The holding in Boulder was limited by Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983), and this issue raised by appellant was disposed of adversely to his contention in Commonwealth v. Grimes, Ky., 698 S.W.2d 836 (1985).
Appellant further contends that his trial on the charge of trafficking in a controlled substance, second offense, should have been bifurcated into separate trials on the guilt phase and the penalty phase. There is, however, no legislative requirement for bifurcation, nor is there a constitutional requirement.
Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), held that bifurcated jury trials for habitual criminals are not constitutionally mandated.
We have held that bifurcated jury trials are not required where the offense charged is operating a motor vehicle while under the influence of alcohol, second offense. Carver v. Commonwealth, Ky., 634 S.W.2d 418 (1982).
The question of whether bifurcated jury trials are required in cases such as this is a matter of public policy which addresses itself to the General Assembly of Kentucky.
Appellant's contention that the prosecutor's closing argument denied him a fair trial is without merit.
We agree with appellant, however, that the order of forfeiture of the cash found on his person was erroneous.
K.R.S. 218A.270(1)(f), in effect at the time of the...
To continue reading
Request your trial
-
Hatfield v. Daugherty
...offense(s) is not an element necessary to determine guilt. The court also explicitly overruled its earlier decision in Smith v. Commonwealth, 707 S.W.2d 342 (Ky.1986), which held that the question of whether bifurcated jury trials are required in persistent felony cases is a matter for the ......
-
Smith v. Com.
...individual) can show that the property was used without his or her knowledge or consent. Smith has also cited to Smith v. Commonwealth, 707 S.W.2d 342 (Ky.1986) and to Commonwealth v. Shirley, 140 S.W.3d 593 (Ky.App.2004) to support his argument that the forfeiture of property is an additio......
-
Hatfield v. Daugherty
...on Clay v. Commonwealth, Ky., 818 S.W.2d 264 (1991), wherein the Kentucky Supreme Court held: It is our opinion that Smith v. Commonwealth Ky., 707 S.W.2d 342 (1986) should be and it is hereby overruled. In all drug cases tried after the effective date of this opinion, when a subsequent off......
-
Hibbens v. Commonwealth, No. 2006-CA-002601-MR (Ky. App. 11/30/2007)
...sought to be forfeited and its use to facilitate violation of the Controlled Substances Act, KRS 218A." Id., citing Smith v. Commonwealth, 707 S.W.2d 342 (Ky. 1986). We next note that under KRS 218A.415, which governs the procedure for seizure of property, the Commonwealth has the initial b......