Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether a district court has the authority to probate or suspend all or any part of a fine and costs?
In connection with the previous statute, KRS 439.260, which was repealed, the court held that the circuit court could postpone the entry of judgment and imposing of sentence and place the defendant on probation when the punishment would be the imposition of a fine. Commonwealth v. Ballinger, Ky., 412 S.W.2d 576 (1967) 578. The old statute, KRS 439.260, spoke in terms of the postponing of entry of judgment and imposing of sentence. No delineation is made as to what kind of sentence, i.e., as to a jail sentence or fine. However, here in KRS 533.010 and 533.020, specific reference is made to probation or conditional discharge in the factual context of suspending a sentence of imprisonment [KRS 533.010] or suspending a sentence where the sentence is not one of imprisonment [KRS 533.020].
Since a sentence may be a fine or imprisonment, or both [KRS 534.040], then under KRS 533.020 if the sentence is not one of imprisonment, it may be deducted that the sentence could involve a sentence of a fine. In which case, and under the deductive reasoning employed in Commonwealth v. Ballinger, above, the probation and conditional discharge provisions of KRS 533.020 would authorize the trial court of jurisdiction to probate the defendant or give him a conditional discharge, the practical effect of which would be to suspend the payment of the fine in toto. Such probation or conditional discharge are subject to the conditions set forth in KRS 533.030. We do not believe the statute contemplates splitting such a sentence of fine, since there is no express provision to that effect. Woll v. Commonwealth, 284 Ky. 783, 146 S.W.2d 59 (1940) 60. It is all or none. In Woll, the trial court probated three years of the five year sentence and entered judgment and ordered defendant to be confined at LaGrange Penitentiary. The statute, KS § 979b-5, provided in part that upon a conviction the courts may postpone the entry of judgment and sentencing, and place defendant on probation, or may impose a fine and place him on probation. Justice Ratliff, for the court, wrote at page 60 that "It is thus seen that the statute does not provide that the court shall have the power to postpone the entering of judgment as to part only of a sentence fixed by the jury, and enter judgment and sentence a defendant to prison on the rest of the penalty, commonly referred to as 'splitting' a sentence. If the legislature had intended to authorize circuit courts to place a defendant on probation as to only a part of the penalty fixed by the jury assuming without deciding that it could do so, evidently would have so provided in exact language or language clearly indicating such intention. But in the absence of such language, neither express nor by necessary implication, we do not think the court is authorized to amend the statute by interpolating therein language conferring such authority." Thus the court held that the courts must exercise the power of probation in toto, rather than in part only. We find no later cases modifying or overruling the doctrine in Woll v. Commonwealth. We find nothing in KRS 533.020 suggesting a "splitting of sentence" authority.
The payment of the costs may be, by the trial court of jurisdiction, suspended. While costs are really not a part of the penalty, and represent the payment to officers for performing certain legal services in the litigation, the legislature may expressly provide for suspension of costs. KRS 533.030(2)(h) provides in part that the court "may", inter alia, require the defendant to pay the costs. (Emphasis added). This suggests that the court may have the converse option, i.e., the suspension of costs.
Under our constitution the manner of probation must be by withholding entry of judgment and suspending sentence. Ridley v. Commonwealth, Ky., 287 S.W.2d 156 (1956) 158; and §§ 15 [only General Assembly may suspend laws], 77 [only Governor may remit fines and forfeitures, commute sentences, grant reprieves and pardons], and 109 [judicial power vested in the courts, except State Senate sitting as a court of impeachment].
Under the above analysis and authorities, we are of the opinion that the district judges you mentioned may, through probation or conditional discharge, legally suspend all of the fine and the costs. They cannot suspend a portion of the fine.