Request By:
Honorable George H. Kunzman
Judge, Jefferson Circuit Court
Criminal Branch, Third Division
Court House Annex
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James L. Dickinson, Assistant Attorney General
Thank you for your letter of November 17, 1977. Although we had promised a reply to your question by February 15, 1978, the press of office work has prevented us from responding until now. We appreciate your patience.
In your letter you referred to KRS 533.060 and then presented a single inquiry containing two parts. The first part presented the following question:
"[W]hen a defendant has been convicted on two or more felonies while on parole, probation, or conditional discharge, can the sentencing judge run such sentences concurrent one with the other and consecutive with any other sentence, . . ."
The second portion of that inquiry asked:
". . . or does the statute mandate that all sentences, including the sentences imposed for offenses committed while on parole, probation, or conditional discharge, have to run consecutively one after the other?"
In order to effectively answer your questions, it is necessary to explain the provisions of KRS 533.060 as it relates to the provisions of KRS 532.110. By studying these two provisions as a whole, the answer to your problem should become apparent.
KRS 533.060(2) provides:
"When a person has been convicted of a felony and is committed to a correctional facility maintained by the bureau of corrections and released on parole or has been released by the court on probation, shock probation, or conditional discharge, and is convicted or enters a plea of guilty to a felony (s) committed while on parole, probation, shock probation, or conditional discharge, such person shall not be eligible for probation, shock probation, or conditional discharge and the period of confinement for that felony shall not run concurrently with any other sentence. "
It can be seen that if an offender is on some form of conditional status 1 and is convicted or pleads guilty to a felony that was committed while on conditional status, two sanctions are required by the statute. First, the offender is not eligible to receive probation, shock probation or conditional discharge for the offense for which he presently stands convicted. In addition, the sentence that is imposed for the felony committed while on conditional status must run consecutively with any other sentence. 2 Thus, it is clear that if the offender stands convicted of a felony committed while on conditional status, the sentence imposed by the trial court for that offense will run consecutively.
Your question, of course, was directed to the situation where the offender has committed multiple offenses while on conditional status. In short, how is he to be sentenced?
KRS 446.020 states that a word importing the singular number only may extend and be applied to several persons or things. Thus the word "felony" incorporates by way of statutory construction the word "felonies. " With this interpretation, the solution becomes apparent. If a person stands convicted of multiple offenses, he is to be sentenced in accordance with the provisions of KRS 532.110 which states that multiple offenses shall run concurrently or consecutively as the court shall determine. In the situation as presented in your letter, the trial court must perform two tasks. First, the trial court must initially determine under KRS 532.110 whether the sentences for the multiple offenses are to run concurrently or consecutively. After that determination is made, then by virtue of KRS 533.060 the trial court must make the aggregate of the multiple offenses run consecutively with any other sentence.
Thus, as an answer to your questions, when a defendant has been convicted on two or more felonies while on parole, probation, shock probation or conditional discharge, the trial court may run such sentences concurrent with each and must run them consecutive with any other sentence. The statute does not require that the multiple sentences be run consecutively with each other.
We hope that we have answered your question. If you need any further assistance, please feel free to contact us.
Footnotes
Footnotes
1 Additional status for the purposes of this letter means parole, probation, shock probation or conditional discharge.
2 Although the phrase "any other sentence" is not clearly defined, it appears from the tenor of the statute that "any other sentence" means any other sentence previously imposed or from which the offender was probated, or conditionally discharged.