Request By:
Mr. Nelson T. Sparks
Assistant County Attorney
P.O. Box 231
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Recently some questions have arisen in Pike County over the proper handling in District Court of "bootlegging" cases under KRS Chapters 242 and 244. The specific problems which you now have relate to KRS 242.990.
In recent years, persons charged with illegal possession, transportation, or sale of alcoholic beverages have commonly had their cases treated as first or second offenses and have received fines and jail sentences as a result. Now it has come to the attention of your office, that a number of these individuals are still being treated as first or second offenders even though they have more than two prior convictions. However, the language of KRS 242.990 indicates to you that a third offense is a felony and is therefore beyond the jurisdiction of the District Court. Thus, you are seeking the opinion of the Attorney General on the following questions:
Question No. 1:
"Where the court records show that an individual has two convictions on 'bootlegging' charges prior to his arrest for a third offense, does District Court have jurisdiction to accept a guilty plea or to try the case?"
KRS 242.990(1) reads:
"Any person who violates any of the provisions of this chapter, for which no other penalty is herein provided, shall, for the first offense, be fined not less than twenty (20) nor more than one hundred dollars ($100) and, if a natural person, imprisoned in the county jail for not less than thirty (30) nor more than sixty (60) days; for the second offense he shall be fined not less than forty (40) nor more than two hundred dollars ($200) and, if a natural person, imprisoned in the county jail for not less than sixty (60) nor more than one hundred and twenty (120) days; for the third and each subsequent offense he shall, if a natural person, be confined in the penitentiary for not less than one (1) nor more than two (2) years, and if a corporation, be fined not less than one thousand (1,000) nor more than two thousand dollars ($2,000)."
Where court records show two convictions under this chapter (242), the district court does not have jurisdiction to accept a guilty plea or try the case. The third offense under KRS Chapter 242 is a felony. KRS 24A.110(1)(a) expressly provides that the district court has no jurisdiction of felony cases. The court, in
Baker v. Commonwealth, Ky., 465 S.W.2d 305 (1971) 307, observed that:
"The increased punishment authorized by statute for a third violation is predicated upon the showing of the two previous convictions and it is not material that the sentence imposed for the previous convictions was improper or that a jail sentence, if imposed thereon, was not served. The important element is the showing of the commission and conviction of the two previous offenses, not the fact that punishment was imposed therefor."
Elsewhere in Baker, the court wrote this at page 307:
"It is, of course, necessary to show that the commission and conviction of the first offense preceded the commission and conviction of the second offense and that the commission and conviction of the second offense preceded the commission of the third offense."
Question No. 2:
"If the District Court lacks jurisdiction to dispose of a third or subsequent offense, does it have the discretion to amend a third or subsequent offense to a misdemeanor and then treat it as a first or second offense?"
KRS 24A.110(4) reads:
"(4) The district court may, upon motion and for good cause shown, reduce a charge of a felony to a misdemeanor in accordance with the Rules of Criminal Procedure."
Even if subsection (4) of KRS 24A.110 is interpreted literally, it is impossible to amend a third or subsequent offense and treat it as a first or second offense, since the convictions of the first and second offense are already of record. Nothing can change that fact. Thus subsection (4) cannot be applied in this situation. It will not be presumed that the legislature did a vain thing.
County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S.W. 185 (1927) 187. It follows that it cannot be presumed that the legislature intended a useless application of the statute. Note again that in Baker, above, Judge Vance emphasized that the increased punishment authorized by statute [KRS 242.990(1)] is predicated upon the showing of the two previous convictions, and that the commission and conviction of the first offense preceded the commission and conviction of the second offense and that the commission and conviction of the second offense preceded the commission of the third offense in point of time. Who can turn back the clock? Thus there is no way a court can make something else out of a third or subsequent offense.
Question No. 3:
"Once a third conviction has been obtained against a particular defendant, can that defendant ever again be tried in the District Court as a first or second offender? "
The answer is "no", for reasons given under Question No. 2. KRS 242.990(1) reads "for the third and each subsequent offense. " (Emphasis added). Each subsequent offense, for the purpose of criminal classification (felony) and authorized punishment, is just another third offense. The courts cannot make anything else out of it. See Baker v. Commonwealth, above.
Question No. 4:
"Does the length of time between convictions affect in any way the treatment of these cases? (For example, would a third offense following a twenty year old second conviction still be considered a felony? "
The answer is "no", as to the first part of that question. There is no specific time which must elapse between each commission and conviction under the statute [KRS 242.990(1)]. The only significant requirement is that each offense commission and conviction must be in the time sequential frame outlined above [first offense precedes second offense, etc.]. See
Baker v. Commonwealth, Ky., 465 S.W.2d 305 (1971) 307; and
Owsley v. Commonwealth, Ky. App., 556 S.W.2d 451 (1977). Thus a third offense following a twenty year old second conviction would still be considered a felony. See KRS 431.060. KRS 500.050(1) provides that except as otherwise expressly provided, the prosecution of a felony is not subject to a period of limitation and may be commenced at any time. The court, in
Woods v. Commonwealth, Ky., 472 S.W.2d 491 (1971) 493, observed that "When one considers the passage of time between the first and second convictions, there is clear circumstantial evidence that the proper sequence of events is presented."
Question No. 5:
"Does the fact that a defendant receives a suspended or probated sentence on first and second convictions affect the way a third offense should be treated?"
The answer is "no". The action taken by the court in sentencing the defendant upon conviction is wholly irrelevant to the jurisdictional question involved in KRS 242.990(1). As pointed out in Baker, above, the increased punishment authorized and thus the precise determination of jurisdiction are predicated upon the showing of two previous convictions. The court said "It is not material that the sentence imposed for the previous convictions was improper or that a jail sentence, if imposed thereon, was not served." Also see
Woods v. Commonwealth, Ky., 472 S.W.2d 491 (1971).
Question No. 6:
"Is a conviction obtained in District Court against a defendant who is treated as a first or second offender valid if the court's records show that two or more prior convictions already existed against that person? Could a conviction so obtained be voided so that a Grand Jury indictment could be obtained on the same charge?"
Since the record of two or more prior convictions under Chapter 242 indicates that the district court did not have jurisdiction to try the case, the defendant could, under RCr 10.22, file a motion in arrest of judgment on the ground of no jurisdiction, provided that the motion is filed within five (5) days after determination of guilt. In view of RCr 13.04, a defendant in such case could file a motion to set aside the judgment under the terms outlined in CR 60.02. It has been held that the successful appeal of a judgment of conviction, on any ground other than insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.
United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978). Thus if such judgment were voided through action of defendant, as above mentioned, he could be indicated in circuit court for the third or more offense without offending the former jeopardy principle of the federal and state constitutions. See the 5th Amendment of the Federal Constitution and Section 13 of the Kentucky Constitution. Moreover, a higher sentence on retrial would not constitute double jeopardy under the Federal Fifth Amendment. See the case of the "Birdman of Alcatraz",
Stroud v. United States, 251 U.S. 15, 64 L. Ed. 103, 40 S. Ct. 50 (1919). That latter doctrine was reiterated in the more recent case of
Chaffin v. Stynchcombe, 412 U.S. 17, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973).
It must be borne in mind that KRS 242.990(1) is inherently a jurisdictional statute, predicated on separate, distinct, and successive violations of Chapter 242, such offenses being mutually exclusive. On that basis there is no analogy to the persistent offender statute, KRS 532.080, since the latter involves felonies only, and thus the circuit court. The lesser included offense concept does not apply to KRS 242.990(1). Another point to keep in mind is that the trying of an indictable offense [the third and subsequent offenses under KRS 242.990(1)] by district court would be unconstitutional. See Section 12,
Kentucky Constitution, and King v. City of Pineville, 222 Ky. 73, 299 S.W. 1082 (1927) 1083, 1084. It is written in 22 C.J.S., Criminal Law, Section 108, p. 299: "Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction, and a usurpation thereof is a nullity." (Emphasis added). In
Singleton v. Commonwealth, 306 Ky. 454, 208 S.W.2d 325 (1948), the statutes required that the Chapter 242 violation case be charged by way of an indictment. He was tried in circuit court, but not by indictment. The old Court of Appeals, in holding the conviction to be void, observed this at page 326:
"It is elementary that a court must have jurisdiction of the subject matter of an offense and of the person of the defendant. The former cannot be acquired by the consent of the accused, although the latter may be."
Finally, in order to enable the court, whether it is the district or circuit confronted with the matter, to make a realistic assessment of the jurisdictional problem in such cases, before jeopardy attaches, it is necessary of course to introduce the actual proof of the previous convictions into the court record. Otherwise the court has no legal way of knowing the truth. See Baker v. Commonwealth, above.