Opinion
May 4, 1977.
Patrick H. Molloy, pro se.
N. Mitchell Meade, pro se.
Before MARTIN, C. J., and PARK and GANT, JJ.
OPINION AND ORDER GRANTING PETITION FOR WRIT OF PROHIBITION
On April 7, 1977, Daryl Ray Driver, was received at LaGrange Reformatory to commence serving a ten-year sentence on a conviction from the Fayette Circuit Court on the charge of Trafficking in Heroin. On April 8, 1977, Andrew Kane was received at LaGrange Reformatory to commence serving a five-year sentence from the Fayette Circuit Court on a conviction of Theft by Unlawful Taking. Thereafter, on April 19, 1977, the Respondent issued an order directing the Warden of the Reformatory to release each of these men on their own recognizance and ordered them to appear in the Fayette Circuit Court on April 22, 1977, for the purpose of hearing a motion for shock probation. The Commonwealth, on relation of the Commonwealth Attorney of Fayette County, immediately filed a petition for writ of prohibition in this Court, seeking an order preventing the Respondent from releasing each of said subjects prior to the period provided by Ky.Rev.Stat. 439.265.
The statute in question provides that under these circumstances no defendant may be released earlier than 30 days nor later than 60 days after he has been delivered to the keeper of the institution to which he has been sentenced, either on his own motion or on the court's motion.
An order staying the order of the Respondent was entered herein on April 20, 1977.
In his return to the petition, the Respondent relies upon several grounds. First, he relies on Ky.Rev.Stat. 23.035. This is merely a statute providing a method for both the circuit court or the appellate courts to reverse, vacate or modify a judgment and is subject to the Rules of Civil Procedure. The statute is usually applied when one party attempts a direct appeal without a previous ruling by the circuit court on a motion for new trial and in any event the time limits established by the Civil Rules are always applicable.
The Respondent further relies upon the cases of Commonwealth v. Kazee, Ky., 252 S.W.2d 20 (1952) and Bax, Sheriff v. Fletcher, Ky., 261 S.W.2d 662 (1953). Both of these cases were predicated upon Ky.Rev.Stat. 451.130(1) and we feel sure that the Respondent must know that this statute was repealed 25 years ago and Chapter 59 of the Rules of Civil Procedure substituted therefor. The present Civil Rules provide for retention over a judgment for a period of ten days and not 60 days and the ten days herein had elapsed. Nor do we intend by this opinion to indicate that the court may utilize the provisions of shock probation as provided by Ky.Rev.Stat. 439.265 within this ten-day period.
It is the opinion of this Court that the case of Commonwealth of Kentucky ex rel. Hancock v. Melton, Ky., 510 S.W.2d 250 is dispositive of the issue here. The head-notes in that case recite:
Pobation order under statute authorizing probation on court's own motion must be entered within the 30-day period commencing 30 days after delivery of defendant to penitentiary.
This opinion is not intended in any way to infringe upon the powers of the court to retain control of their judgments for the period provided by the Rules of Civil Procedure. Had the respondent placed the defendants herein in the Fayette County Jail for a period not to exceed ten days, it would clearly be within his power to subsequently probate said defendants. However, once the defendants are committed to the penal institution, it is our opinion that Ky.Rev.Stat. 439.265 is controlling and must be complied with.
The petition for writ of prohibition is granted.
All concur.