Opinion
September 19, 1975.
Appeal from the Fayette Circuit Court, Armand Angelucci, J.
Jack E. Farley, Public Defender, Paul F. Isaacs and Kathleen McCabe, Asst. Public Defenders, Frankfort, for appellant.
Ed W. Hancock, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
Newcomb was convicted of aiding and abetting armed robbery (KRS 433.120), and of being an habitual offender (KRS 431.190). He was sentenced to two years in the penitentiary on the aiding and abetting armed robbery conviction and to twenty years on the habitual-criminal conviction. Judgment was entered on both convictions on October 21, 1974.
Newcomb alleges error in the judgment in imposing sentence for the principal offense in addition to the habitual-criminal sentence. That contention is correct. The rule is that if the jury finds the defendant guilty of the principal offense and of the previous convictions, only the penalty prescribed by the habitual-criminal statute shall be imposed. The error does not require reversal of the judgment. It is sufficient that the judgment be modified to eliminate the penalty for the principal offense. See Covington v. Commonwealth, Ky., 481 S.W.2d 62 (1972).
There is no merit to Newcomb's other contentions of error.
It is the opinion of the court that the judgment should be and it is affirmed as to the habitual-offender conviction. The trial court is directed to modify the judgment by eliminating the penalty for the principal offense of aiding and abetting armed robbery.
REED, C. J., and CLAYTON, JONES, PALMORE, STEPHENSON and STERNBERG, JJ., sitting.
All concur.