Request By:
Honorable Calvin N. Manis
Perry Circuit Judge
Courthouse
Hazard, Kentucky 41701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Senate Bill 270 [Ch. 180, 1976 Session], Section 2(1), now KRS 533.060(1), provides that "when a person has been convicted of an offense or has entered a plea of guilty to an offense classified as Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge."
You would like our opinion as to whether or not the above KRS 533.060(1) would prohibit you from granting a certain defendant shock probation.
The essential facts are that on April 20, 1977, the defendant filed a motion for shock probation under KRS 439.265. He was convicted of a Class C felony involving the use of a deadly weapon by a jury on November 25, 1975. The Court of Appeals of Kentucky on January 28, 1977, remanded the case to the Perry Circuit Court for the re-sentencing of the defendant. The resentencing was held by Perry Circuit Court on March 25, 1977, and he was subsequently taken to Kentucky State Reformatory.
KRS 533.060 became effective June 19, 1976 [90 days after adjournment - see § 55, Kentucky Constitution].
No statute shall be construed to be retroactive, unless expressly so declared. KRS 446.080(3).
Taylor v. Asher, Ky., 317 S.W.2d 895 (1958). The essential task here is to determine which event in the history of the case is controlling in connection with applying or not applying KRS 533.060(1). From the literal wording of the statute it is our view that "when a person has been convicted or has entered a plea of guilty" is the contolling time element in applying or not applying the statute. (Emphasis added).
It is thus our opinion that KRS 533.060(1) applies to a situation where a defendant has been convicted [or has pleaded guilty to the offense] of an offense, on and after June 19, 1976, classified as a Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury. Since this defendant was convicted of a Class C felony involving the use of a deadly weapon on November 25, 1975, this statute does not apply. If it were applied, it would be retroactive in effect; and, as we pointed out above, the statute cannot be retroactively applied since no such intent is dearly expressed or necessarily implied. See also KRS 446.110 as to a new law not repealing a former law and not affecting a penalty or punishment incurred or right accrued or claim arising under a former law. See