Request By:
The Honorable Jas. C. Carter, Jr.
Circuit Judge
29th Judicial District
Tompkinsville, Kentucky 42167
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This is in reply to your request for an Opinion concerning whether you, as Circuit Judge of the 29th Judicial District, are authorized to grant incarcerated misdemeanants the privilege of the "work-release" aspects of KRS 439.179. As a corollary, you question whether only the county judge, in his capacity as an officer of the executive branch of government, may grant work-release privileges to a misdemeanant, pursuant to the above referenced statute.
We find that subsection (6) of KRS 439.179 is ambiguous because it does not specify who may sanction parole privileges for a misdemeanant convicted in quarterly or circuit court and thereafter placed in jail as a prisoner. The following references provide insight as to this gap so as to carry into effect the spirit, purpose, and interest of the Legislature: Peck v. Condor, Ky., S.W.2d (rendered August 20, 1976); OAG 77-127; 76-52; 73-121; 73-108; 73-53, and 72-548.
KRS 439.177 and 439.179, which pertain to the release of persons confined in jail for misdemeanors, were both enacted after our highest appellate court had held invalid a previous statute, KRS 439.175, authorizing parole of such prisoners for the reason that it provided no means of implementation. See Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), in which it was observed that an unconditional grant of parole amounts to a pardon, thus violating Kentucky's Constitution, § 77.
Of course where a judge sentences the misdemeanant and the defendant is placed in jail, the sentencing judge loses jurisdiction as a judicial officer. If a circuit judge refuses probation and has entered a sentence of confinement, he has lost jurisdiction, except as provided at KRS 439.265, dealing with "shock probation. "
The parole function, however, is not basically of a judicial nature. It is primarily an executive or administrative role. Probation and parole are mutually exclusive alternatives.
In resolving the ambiguity as to whether a circuit court judge has jurisdiction to temporarily release a prisoner for gainful employment, we find OAG 77-127 particularly helpful. As set out therein, the following schematic analysis represents who has jurisdiction regarding theparole authority of a misdemeanant sentenced to jail. Sentencing CourtClass CityParole AuthorityPolice Court1, 2, 3Sentencing courtPolice Court4, 5, 6County judgeCircuit, quarterly, justiceAny classCounty judge
Thus we can see that a county judge may parole misdemeanants under KRS 439.177(1) if the sentencing court was the circuit court, quarterly court, or justice court. Because the statute in question, KRS 439.179, is a parallel statute to 439.177, and because its work-release aspects is a form of temporary parole, we believe that OAG 77-127 is dispositive of your inquiry.
In conclusion, once a misdemeanant has been convicted by the circuit court and sentenced to jail, the circuit judge would no longer have jurisdiction to invoke the provisions of KRS 439.179. When a person has been convicted of a crime and has begun to serve his sentence the function authority of the trial court is finished.
. . . What then happens to the prisoner is entirely in the bailiwick of the executive branch of the government, and is no business of the courts, including the trial court. In granting parole the county judge acts in an executive capacity not a judicial capacity. . . . Peck v. Condor, supra.
Thus the county judge shall have the authority and jurisdiction to make all determinations as to the work-release aspects of KRS 439.179, after the prisoner has been received at the jail, following a sentence by the police court of a 4th, 5th, and 6th class city, or a circuit, quarterly, and justice court.