Tipton v. Com.

• Citation: 770 S.W.2d 239
• Decision Date: 24 March 1989
• Docket Number: No. 87-CA-2522-DG,87-CA-2522-DG
• Parties: Timothy TIPTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Court of Appeals of Kentucky

Page 239

770 S.W.2d 239

Timothy TIPTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 87-CA-2522-DG.

Court of Appeals of Kentucky.

March 24, 1989.

Rehearing Denied May 26, 1989.

Burr J. Travis, Busald Funk Zevely P.S.C., Florence, for appellant.

Frederic J. Cowan, Atty. Gen., Michael L. Schulkens, Paul H. Twehues, Jr., Newport, and Michael L. Williams, Covington, for appellee.

Before McDONALD and WEST, JJ., and WHITE, Special Judge.

McDONALD, Judge.

This matter is before us on discretionary review of a judgment of the Campbell Circuit Court in an appeal from a ruling of the Campbell District Court. The district court ruled that the Commonwealth could not admit the breathalyzer results of Timothy Tipton nor his prior conviction of driving under the influence (DUI) at the trial of his current DUI charge. The circuit court reversed. The facts are as follows:

On January 12, 1987, the Campbell County police arrested Timothy Tipton, noting on the citation:

Driving under the influence breathalyzer 2000 results .16%

On a prior occasion, June 1, 1984, in Grant County, Timothy Tipton was arrested for speeding and DUI. His breathalyzer results showed a reading of .11%. Tipton entered a plea of guilty on July 7, 1984; however, his plea was entered by his attorney pursuant to RCr 8.28(4). Admitted by all, Tipton was at his job, desiring not to lose time from his employment to go to court. The plea agreement was signed by his lawyer.

After the second and current arrest but prior to his district court trial, Tipton moved for a suppression hearing to (1) set aside his prior conviction on the grounds that the plea of guilty entered was in violation of RCr 8.08 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), because the trial court did not establish the guilty plea of Tipton was entered knowingly, intelligently and voluntarily before accepting it; and (2) that the breathalyzer test results of the second arrest should be suppressed because the police officer did not comply with Chemical Test Manual for Kentucky Sec. 8.8B(3) which provides as follows:

20 Minute Observation Period

. . . . .

The operator must observe the defendant at all times during this period in order that he can testify positively that during this 20 minute observation period defendant had nothing to eat or drink, did not regurgitate or smoke.

The district court, without separate findings of fact, entered an order suppressing the prior DUI conviction because the record failed to reveal that Tipton was cognizant of his rights, and because his counsel, who entered his plea and signed the plea form for Tipton, only assumed that he explained to Tipton his rights. Boykin, supra, was not complied with in fact. Secondly, the breathalyzer results of the second charge were also suppressed because the police officer did not comply with the 20-minute observation requirement.

The Commonwealth appealed both rulings to circuit court. In its statement of appeal, the Commonwealth said the appeal was pursuant to Section 115 of the Kentucky Constitution and KRS 22A.020.

In reversing the district court, the circuit court adjudged that Tipton's attorney informed him of all his constitutional rights and that Tipton's decision not to attend the plea hearing constituted a waiver. Also it determined the plea was done in conformity with RCr 8.28(4) wherein for misdemeanors the court may accept a plea of guilty in the defendant's absence. Finally, the circuit court ruled that "eyeball to eyeball" observation for 20 minutes by the officer is not required by law as ruled by the district court; therefore, it held the breathalyzer results to be admissible.

From the circuit court judgment we granted Mr. Tipton's motion for discretionary review. We have no transcript of the testimony or findings of fact from district court.

Tipton's first assignment of error is that the circuit court did not have jurisdiction to entertain the interlocutory appeal from the district court. We are persuaded that the procedure to the circuit court was jurisdictionally defective. First, the notice of appeal stated that the appeal was made pursuant to KRS 22A.020. Procedurally, this is not proper because the statute governs appeals from circuit court to the Court of Appeals exclusively. Unquestionably, KRS 22A.020 provides for interlocutory appeals but only from circuit court, not to circuit court from district court. The proper procedure for appeals from district court is governed by KRS 23A.080, and therein we see no corollary to KRS 22A.020(4) authorizing an interlocutory appeal by the Commonwealth.

KRS 22A.020(5) may hint of a review procedure but it would apply only in that a party aggrieved by the judgment of a circuit court on an appeal of an interlocutory order in a criminal case could seek discretionary review in the Court of Appeals to have the circuit court decision vacated as being beyond the circuit court's jurisdiction. This is the type of action similar to action taken by the Supreme Court in cases where the Court of Appeals has undertaken review of a circuit court judgment which was not final or otherwise appealable. See Hook v. Hook, Ky., 563 S.W.2d 716 (1978), and Hale v. Deaton, Ky., 528 S.W.2d 719 (1975). The legislature's use of the phrase "writ of certiorari" in the statute is merely loose language which simply expresses the equivalent of discretionary review.

The Commonwealth argues that KRS 23A.080(1) authorizes a direct appeal to circuit court from "any final action" of the district court, and that the suppression ruling of the breathalyzer results and prior conviction was a final action. The phrase "final action" is not so limited as "final order," "final decision" or "final judgment." We reason that the legislature did not intend anything significant by the word "action" instead of "judgment" or its equivalent. The emphasis is on the word "final." So the legislature did not authorize interlocutory orders to be reviewable by direct appeal. While we are persuaded that the Commonwealth cannot properly get the review it sought and obtained, we equally believe some vehicle for review of such interlocutory district court rulings should be available. Otherwise, the Commonwealth may be forced to trial without vital evidence or with some other significant prejudice to its case, as shown herein.

In our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court. See SCR 1.040(6). CR 81 allows the old remedy by writs of mandamus and prohibition to be obtained by an original action in the appropriate court. This is not an immediate and direct interlocutory appeal to the appellate court but an original action. Procedurally, review is granted, thereby comporting with KRS 23A.080(2) which says, "The circuit court may issue all writs necessary in aid of its appellate jurisdiction...." (Emphasis added.)

However, the standard of review is different. Under the direct and interlocutory appeal approach, the standard of review is whether the trial court's...