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KENTUCKY
APPELLATE DECISIONS
January 12-16, 2004
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The links from this page are to the
Kentucky Administrative Office of the Court's (AOC) web site at www.KyCourts.net
which contains both published and unpublished opinions of the Kentucky
Supreme Court and Kentucky Court of Appeals. First, opinions that are
labeled "NOT TO BE PUBLISHED" shall never be cited or used as
authority in any other case in any court of this state. CR 76.28(4)(c).
This is true even after the unpublished opinions become final. Secondly,
although opinions labeled "TO BE PUBLISHED" may be cited as
authority in any court of the Commonwealth of Kentucky, the opinions
shall not be cited until all steps in the appellate process have been
exhausted and they become final.
As of the date Court of Appeals
opinions were placed on the web site, none were final. We used the
label "NONPUBLISHED" to mean the opinion was designated by court
"not to be published", and the label "PUBLISHED"
to mean
the court designated the decision "to be published." "Clicking"
on the link in the left column should bring up the decision in
"pdf" format as listed on the AOC's web site.
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Kentucky
Court of Appeals Decisions
January 16, 2004
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| AOC LINKS - FULL TEXT |
SUMMARIES OF DECISIONS |
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1999-CA-000454.pdf
Size: 21 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
DISHMAN
v. COM.
CRIMINAL
TC did not err in denying Dishman's
RCr 11.42 motion without an evidentiary hearing.
No error in denying motion for prerelease
probation under KRS 439.575 considering statute
was deemed unconstitutional in Prater v.
Commonwealth, Ky., 82 S.W.3d 898 (2002).
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2001-CA-001940.pdf
Size: 19 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
BURRIS
V. GIBBS
CIVIL RIGHTS, Wrongful Discharge
Appellant had sued her supervisor at a
machining company for discharging her for having
sought workers' comp benefits. Henderson
Circuit Court granted JNOV to supervisor and CA
affirms.
Appellant had sued supervisor personally (he owned
90% of the company) and the company. Jury awarded
appellant almost $150,000, half of which were
punitives. Supervisor moved for JNOV and the TC
granted, holding that neither the KY Civil Rights
Act nor Title VII provides individual liability
for wrongful discharge, only corporate. CA
agrees, citing Wathen v. General Electric Co., 115
F.3d 400 (6th Cir. 1997).
(Tackett, J., affirming) |
2001-CA-002682.pdf
Size: 25 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
DAVIS
v. COM.
CRIMINAL, Counsel
CA affirmed in part, vacated
and remanded in part Jefferson Circuit Judge
Goeffrey Morris' order denying Defendant's RCr
11.42 motion. Case remanded in part for an
evidentiary hearing on the sole issue of trial
counsel's trial preparation. Motion was
timely filed under the guidelines of RCr
11.42(10). Under RCr 11.42(10), "[a]ny
motion under this rule shall be filed within
three years after the judgment becomes final . .
." The judgment became final when the
Kentucky Supreme Court denied Davis’s petition
for rehearing. See CR 76.30(2)(c). Here,
TC called no expert witnesses to refute the
Commonwealth’s expert testimony as to the time
and manner of death. "In light of the
expert testimony in this case, it is improbable
that this evidence could be refuted, however, we
believe an evidentiary hearing is warranted on
this matter as it raises a material issue of
fact that cannot be resolved by an examination
of the record. See RCr 11.42(5)."
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2002-CA-000320.pdf
Size: 27 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
YORK
v. COM.
CRIMINAL, Expungement
CA affirmed TC's denial of Defendant's two
motions to expunge following judgment of acquittal
and reversal on appeal.
"The transcript of the hearing and the trial
court’s orders reflect that it carefully
considered the matter on remand before it reached
a decision. The trial court balanced the interests
implicated in granting York’s motion for
expungement and found that the state interest in
maintaining the records relating to the charges
outweighed York’s interest in expunging them. We
believe this was within the range of conclusions
based upon the evidence and proper application of
KRS 431.076, therefore, we affirm the orders
denying expungement in both the Bracken and Mason
Circuit Courts." |
2002-CA-000511.pdf
Size: 47 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
VANN
(now Jorjani) v. VANN
DIVORCE, Child Custody
Court of Appeals affirmed family court's
refusal to modify joint custody arrangements
requested by both parents. In spite of
length post-divorce acrimony and litigation, the
child "was finally adjusting to the divorce of his mother and father and his life should not be interrupted again. These findings were not clearly erroneous. These findings appear specifically addressed to the issue that
[child]. should not be subjected to a change of residence, as he has finally, after a long period of difficulty, become adjusted to his new home." |
2002-CA-000722.pdf
Size: 29 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
ADKINS
v. COM.
CRIMINAL, Confessions,
Miranda Warning
CA affirmed TC's denial of
Defendant's motion to suppress alleging Miranda
violation. The only issue was whether
the officers violated Adkins right to
counsel by continuing an interrogation and
whether his confession was voluntary. CA
found no improper interrogation and
held TC did not abuse its discretion in
denying the motion to suppress as substantial
evidence supported its findings.
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2002-CA-001284.pdf
Size: 22 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
SHANNON
v. CITY OF LYNNVIEW
GOVERNMENT EMPLOYMENT
Appellant
not entitled administrative hearing where
appellant was terminated from police department
during probationary period.
The Court found Appellant had previously
agreed to additional probationary period as part
of terms of this reinstatement.
AFFIRMED. |
2002-CA-001394.pdf
Size: 23 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
BURKHEAD
V. COM.
CRIMINAL , Jury
Instructions
CA affirmed Defendant's conviction for
wanton first degree assault following jury
trial. TC properly instructed on
wanton first degree assault, as evidence
did support a finding of extreme
indifference to the value of human life.
"Instructions must be based
on the totality of the evidence, as required by Mabe
v. Commonwealth, Ky., 884 S.W.2d 668
(1999). Kentucky law requires a trial
court to give instructions on the whole law of
the case. Cooper, Kentucky Instructions to
Juries, Vol. l, Section 1.05A, p. 14
(1999). Where there is a question of fact
regarding the defendant’s actions, that issue
must be placed before the jury in the jury
instructions. Commonwealth v. Benham,
Ky., 816 S.W.2d 186, 187 (1991). The question of
whether a defendant acted with extreme
indifference is a jury issue, and must be
presented to the jury for ruling. Hudson v.
Commonwealth, Ky., 979 S.W.2d 196, 198
(1998). Instructions that provide the jury with
sentencing options including wanton or reckless
behavior are considered proper. Robertson v.
Commonwealth, Ky., 82 S.W.3d 832 (2002).
Next, Commonwealth's failure to
provide notice of prior bad act was not
intentional, and thus, not reversible error for
TC to permit its introduction. TC properly
denied Defendant's motion to introduce videotape
of the scene. TC properly limited
cross-examination. Limitation on voir dire
questioning did not rise to reversible error.
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2002-CA-001781.pdf
Size: 38 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
N.P.,
THE MOTHER OF J.L.F. v. COM.
FAMILY LAW, Parental Rights, Termination
Following a bench trial, trial court terminated
mother's parental rights to her son J.D.P., and her daughter, J.L.F. Having concluded that the trial court erred by relying upon impermissible hearsay evidence at trial,
the C.A. reversed and remanded for further proceedings.
A "compiler of records" at the cabinet
impermissibly testified as to "conclusions and/or opinions of other [Cabinet] workers," and that this testimony constituted inadmissible hearsay evidence.
"[T]he record is replete with instances in which the trial court, over
[the mother's] objection, permitted [the records
compiler at the cabinet] to testify regarding
'substantiated' instances of neglect and/or abuse that had been reported in the Cabinet's records."
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2002-CA-001876.pdf
Size: 37 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
WEST
v. COM.
CRIMINAL, Entrapment, Directed Verdict and
Instructions
CA affirmed Defendant's
conviction for trafficking in a controlled
substance in the first degree (oxycodone)
following jury trial. TC did not err
(1) by failing to grant West's motion for a
directed verdict of acquittal based on the
defense of entrapment, and (2) by failing to
instruct the jury as to the proper allocation of
the burden of proof in respect to the defense of
entrapment.
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2002-CA-002008.pdf
Size: 24 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
STEWART
v. STEWART
DIVORCE, Maintenance, Expert Witnesses
Seventy-year old husband claimed award of
permanent maintenance was improper since he would
soon retire. Court of Appeals stated they
were limited to the record as it existed and not
prospectively. "KRS 403.250 provides that an award of maintenance may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.
Id. If Danny Joe's [husband's] income declines at some point in the future as he anticipates, he may avail himself of
KRS 403.250 for the appropriate relief. The court's failure to address this issue was not error."
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2002-CA-002052.pdf
Size: 23 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
MORROW
v. COM.
CRIMINAL, Evidence, Prior Convictions
CA affirmed Defendant's convictions for
escape in the second degree and of being a
persistent felony offender in the second degree
(PFO). Alleged error that TC improperly
permitted prior bad act evidence was not preserved
for review. Error involving impeachment with
previous felony conviction was harmless. The
rule is set out in Commonwealth v. Richardson,
Ky., 674 S.W.2d 515, 518 (1984), which states:
" [A] witness may be asked if he has been
previously convicted of a felony. If his answer is
"Yes," that is the end of it and the
court shall thereupon admonish the jury that the
admission by the witness of his prior conviction
of a felony may be considered only as it affects
his credibility as a witness, if it does so. If
the witness answers "No" to this
question, he may then be impeached by the
Commonwealth by the use of all prior convictions.
. . ." Here, the Commonwealth
violated the rule by eliciting testimony that Morrow
had been convicted of two previous felonies, and
the Court failed to instruct the jury on the
limited use of the evidence. Nevertheless, CA
found the error to be harmless. |
2002-CA-002115.pdf
Size: 21 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
DIAZ,
M.D. v. BIG SANDY HEALTHCARE, INC.
CONTRACTS, Physicians
Dr. Diaz failed to get certified by the
hospital in OBGYN. As a result he pulled a
Nixon, (resigned)), and then had to repay his
student loans instead of Big Sandy footing his
education bill. Dr. appealed claiming
Big Sandy had interfered with his getting
certified. The evidence and Jury found
otherwise and the CA affirmed. CA said the
jury's verdict was not palpably against the
evidence. |
2002-CA-002548.pdf
Size: 21 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
ZIEGLER
v. CITY OF FORT MITCHELL
ZONING, Exemptions
In affirming the trial court, the C.A. held
the appellant landowners "have no legal right to engage in agriculture in a residential zone.... [They] cannot negate the City's authority to regulate activity in residential zones by unilaterally attempting to convert their property into a farm. The restrictions imposed by the City on property within residential zones is a proper exercise of its authority under KRS Chapter 100." |
2002-CA-002564.pdf
Size: 25 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
VICKERS
V. BELLERIVE DEVELOPMENT CO.
NEGLIGENCE, Premises Liability, Slip and Fall
Owner of parking lot where Krogers located was under no duty to warn
patron of the hazardous condition of the parking lot
or to clear the snow. The snow was packed
and claimed negligent snow removal. Summary
judgment dismissing complaint
affirmed.
"The Kentucky Supreme Court has defined the law regarding liability for injury due to natural outdoor hazards. In
Standard Oil Co. v. Manis, Ky., 433 S.W.2d 856 (1968), the Court held that "natural outdoor hazards which are so obvious to an invitee as to the owner of the premises do not constitute unreasonable risks to the former which the landlord has a duty to remove or warn against." (Emphasis in original).
Id., at 858. This standard was recently reaffirmed in
PNC Bank v. Green, Ky., 30 S.W.3d 185 (2000).
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2003-CA-000080.pdf
Size: 31 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
BAPTIST
HOSPITAL EAST v. CRAFT, Adm'x of Estate of Hibbett
WILLS & ESTATES, Claims against Estate
Claims
seem to cause a lot of trouble and the only
way to understand this case is to look at a
timeline:
| Date
of Death |
11/23/2001 |
| 1st
Demand Letter |
12/19/2001 (Baptist
East didn't know of death) |
| 2nd
Demand Letter |
4/25/2002
(Baptist East still didn't know) |
| Complaint
filed |
6/20/2002
(Baptist East still didn't know and sued
the decedent) |
| Claim
disallowed |
7/10/2002 |
| Amended
Complaint |
9/20/2002
(Amended to name Administratrix) |
| Summary
Judgment |
11/22/2002
(Against Baptist East based on failure to
file
suit within 60 days allowed
by KRS 396.055)
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Baptist
East successfully argued, based on Tulsa
Professional Collection Services v. Pope,
485 U.S. 478, 108 S. Ct. 1340, 99 L.Ed.2d 565
(1988) that the Administratrix knew of the
claim and was required to give notice of the
death so the hospital could follow the claims
procedures. The Court of Appeals then
determined that the Administratrix had done so
when she disallowed the claim on 7/10/2002 and
that Baptist East had thus presented its claim
when it Amended its Complaint to name the
Administratrix on 9/20/2002. The Court of
Appeals remanded the case for unspecified
"further proceedings."
The
concurring opinion would have treated the demand
letters as notice and would have held that the
Administratrix failed to take action and thus
allowed the claim. We don't know when the
Administratrix was appointed so it's hard to
analyze that opinion.
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2003-CA-000568.pdf
Size: 24 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
IRWIN
v. CITY OF HARDINSBURG
GOVERNMENT EMPLOYMENT, Mayorial Authority to
Discharge
Fifth-class
city that has not adopted a civil service
commission and has not accepted funding from the
city may terminate employment of police officer
without cause or a hearing, provided reason for
termination is not violative of public policy.
AFFIRMED. |
2003-CA-000676.pdf
Size: 36 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
JONES
v. BAPTIST HOSPITAL EAST
WORKERS COMP
Court of Appeals concluded that the Board erred both in its application of the law and in its assessment of the evidence so as "to cause gross injustice."
See Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992), and thus vacated and remanded the Board's
decision reversing the ALJ who had awarded
claimant permanent partial disability benefits of $12.23 per week for 425 weeks. The ALJ found that while working for the appellee, Baptist Hospital East
, the claimant sustained a 5% impairment
attributing her impairment rating to the cumulative effect of two work-related injures to her back: one occurring in 1999 and the other in 2000. |
2003-CA-000790.pdf
Size: 21 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
MILLS
v. COM.
CRIMINAL
CA affirmed Circuit Court's
denial of pro se Defendant's
post-conviction motion for relief.
Mills’ objection to the indictments was
untimely and the alleged defect in those
indictments was clearly not prejudicial.
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2003-CA-000970.pdf
Size: 25 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
JONES
V. SPEEDWAY/SUPERAMERICA LLC
WORKERS COMP
ALJ decision that that no award for ongoing medical expenses
was
either appropriate or necessary was affirmed. |
2003-CA-001066.pdf
Size: 21 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
COCKRUM
V. NATIONAL TOBACCO CO.
WORKERS COMP
Affirmed the decision of the Board upholding the award of permanent partial disability benefits pursuant to the standard set forth at
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
With regard to the employer's request for sanction
against the claim, the Court stated that "In light of Cockrum’s long period of employment with National Tobacco, the serious nature of his injury, and the fact that his entire work history has involved the use of both of his hands, it is wholly credible for him to believe his case to be worthy of another examination of the evidence. He is clearly entitled by law to nothing less. We find no merit whatsoever in National Tobacco’s request for sanctions."
"Although we have determined that the Board did not err in its assessment of the
evidence, we cannot agree that Cockrum acted in bad faith by
seeking further review."
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2003-CA-001746.pdf
Size: 32 kb
Date: 1/14/2004
NOT TO BE PUBLISHED |
HOUSECALL
MEDICAL SERVICES V. BROWN
WORKERS COMP
Housecall Medical Resources (Housecall) sought
review of an opinion of the Workers’ Compensation Board (Board) affirming a decision of the Administrative Law Judge (ALJ) which, among other things, determined that an August 2001 diskectomy operation performed on Doris Anderson Brown was a compensable, reasonable, and necessary medical procedure."
Housecall claimed res judicata precluded a determination that the August 2001 diskectomy
was compensable because approximately 20 months prior to the operation an
Arbitrator had determined that the procedure was not reasonable and
necessary". |
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Discretionary
Reviews Granted by Kentucky Supreme Court
For a current list of discretionary
reviews posted at AOC in PDF format - Click
Here
12/11/2003
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Horne v. Precision Cars of
Lexington, Inc., et al . , 2002-SC-104-DG
Torts . Personal Injury. Outdoor Slip and Fall.
Issues include application of the "open and obvious"
standard with respect to injury sustained by a car dealership
customer who tripped over a partially obscured concrete bumper
guard in the dealership parking lot.
York v. Kentucky Farm Bureau
Mutual Insurance Company, 2003-SC-334-DG
AND
Prewitt v Kentucky Farm Bureau Mutual Insurance Company,
2003-SC-338-DG
Insurance. Motor Vehicle.
Issues include applicability and validity of a "nonpermissive
user exclusion" from motor vehicle insurance liability
coverage.
Commonwealth v. Sowell ,
2003-SC-355-DG
Criminal Law. Misdemeanor. Dismissal without Prejudice
.
Issues include whether the KRS 500.050(2) statute of
limitation for offenses other than felonies bars an attempt to
"redocket" non-felony charges dismissed without
prejudice over ten days earlier.
Baptist Healthcare Systems,
Inc d/b/a Central Baptist Hospital v Miller, 2003-SC-471-DG
Torts . Negligence . Damages . Medical Expenses.
Issues include whether damages for
medical expenses may include the amount billed or are limited
to the amount actually either paid or collectible as a matter
of law.
Fayette County Board of
Education v. M.R.D., etc. ,2003-SC-448-DG
Administrative Law. Education . Free and Appropriate
Education.
Issues include the appropriate standard as well as appropriate
application of the standard to the question whether a local
board of education offered a student the "free and
appropriate public education" required by the federal
Individuals with Disabilities Education Act.
City of Bromley, et al . v.
Smith , 2003-SC-141-DG, and Smith, et al . v. City Bromley, et
al . , 2003-SC-144-DG
Local Government. Taxes . Constitutionality . Refunds .
Class Action .
Issues include whether a class may be certified for
purposes of obtaining a refund, contrary to Bischoff v . City
of Newport, Ky.App ., 733 S .W .2d 762(1987), as a result of
subsequent legislative amendments to KRS 134 .590 after the
rendition of St. Ledger v. Revenue Cabinet, Ky., 912 S .W .2d
34 (1995).
Grand Aerie Fraternal Order
of Eagles v. Carnevhan, etc., et al . , 2003-SC-169-DG
Torts. Dram Shop .
May a national organization be found liable for an incident
arising out of a local chapter's conduct involving the serving
or selling of alcohol .
Ba lam, et al. v. Boys,
etc., et al . , 2003-SC-250-DG
Torts. Damages . Pain and Suffering . Zero Verdict.
Issues include whether a jury may return
a zero verdict where an injured party went through a surgical
procedure.
Everly v. Commonwealth ,
2003-SC-257-DG
Criminal Law. Sexual abuse . Child witness.
Issues include reviewing the propriety of a "circle of
chairs" arrangement for the child to testify, i .e ., not
putting the child in the witness box, but rather putting the
child in a chair in close proximity to the jury, including in
the circle the judge, court reporter, prosecutor and defense
counsel but excluding the defendant. Specific issues relating
to the "circle of chairs" include alleged denial of
both the right to confrontation and the right to consult with
counsel as well as an argument regarding the necessity of a
finding of KRS 421 .350 "compelling need" for such
an alternative .
Shelter Mutual Ins. Co . v.
Arnold , 2002-SC-373-DG
Insurance . Motor Vehicle . Physical Contact
Requirement.
In an action seeking damages resulting
from an accident caused by a hit-and-run driver, at issue is
whether the "physical contact" requirement for
recovery of uninsured motorist benefits is satisfied when an
unidentified hit-and-run vehicle strikes another vehicle which
in turn strikes the insured vehicle, but there is no actual
physical contact between the insured vehicle and the hitand-run
vehicle .
State Farm v. Marled, etc.,
et al . , 2002-SC-846-DG
Insurance. Household Exclusion . Umbrella Policy.
At issue is whether, as applied to automobile liability
coverage, a household exclusion clause in a personal liability
umbrella policy issued in another state to out-of-state
residents is void and unenforceable as against public policy
in an action brought in Kentucky for damages arising from a
motor vehicle accident occurring in Kentucky.
Parts Depot, Inc, et al. v.
Beiswenger, 2002-SC-948-DG
KRS 337.385. Employment Law. Wage Dispute .
Must an action seeking earned but
unpaid wages plus liquidated damages and attorney fees,
brought pursuant to KRS 337 .385, be dismissed by the circuit
court for lack of subject matter jurisdiction on the basis
that the matter must first be heard by the Labor Cabinet
pursuant to KRS Chapter 337?
Pedigo v. Breen ,
2003-SC-28-DG
Legal Malpractice. Limitations.
At issue is whether, as required by KRS 413.245,
plaintiffs cause of action for legal malpractice was timely
filed within one year of the date her alleged legal harm
became fixed and nonspeculative .
Hargiss, etc., et al . v.
Baize, etc. . et al. , 2002-SC-969-DG
Negligence per se. Safety Regulations .
Owner of truck was killed on company's
property while unloading logs owned by company from a trailer
owned by company in conjunction with a pick up and delivery
scheduled by company. Is truck owner a member of the class of
persons intended to be protected by workplace safety
regulations and thereby entitled to pursue a claim of
negligence per se against company for violation of safety
regulations pertaining to unloading of logs?
City of Covington, et al v
Kenton County. Kentucky, 2002-SC-991-DG
Counties . Cities . Occupational License Fees .
Issues include whether KRS 68 .197(4) entitles residents
of Covington to credit their municipal occupational license
fees against year-2000 increases in Kenton County's
occupational license fees.
Commonwealth v. ChapDell ,
2003-SC-454-DG
Criminal Law. Probation Revocation . Concurrent
State/Federal Sentences Agreement.
Where defendant was found guilty and sentenced to ten
years, and was granted shock probation ; and subsequently
committed bank robbery resulting in federal indictment; and
waived formal probation-revocation hearing in exchange for
agreement that state sentence would run concurrently with
anticipated federal sentence ; but federal authorities refused
to allow credit against subsequent federal sentence while
defendant remained in state prison, how is the
concurrent-sentences agreement to be effectuated?
Commonwealth v. C.J., a
Child , 2002-SC-1009-DG
Juvenile Code. Appeals. Informal Adjustment. Final
Action .
Where juvenile was charged with possession of a weapon at
school and wanton endangerment, and Juvenile Session of
District Court at arraignment moved for informal adjustment
(KRS 610 .100(3); KRS 600.020(31)) on condition that juvenile
surrender weapon, continue counseling, and perform community
service; but Commonwealth objected on grounds that statutory
notification requirements for informal adjustment had not been
met, may Commonwealth appeal from court's action? |
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Oral Arguments Calendar
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- Supreme Court
- February - not posted yet
- Court of Appeals
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Kentucky
Federal Court Decisions
January 19-25, 2004
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- Western District Court - Kentucky
These decisions are in Word Perfect format so
that WordPerfect or a program capable of converting or reading
WordPerfect is required. MS WordPad or NotePad will not
work. MS Word 2000 will open the file. You may have to
save the decision on your disk and then open the saved
document if you cannot change the default program for reading
these files with an "p" extenstion.
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- Sixth Circuit Court of Appeals
| Opinion |
Pub
Date |
Short
Title/District |
| 04a0026p.06
| 2004/01/20
| USA
v. Horn
Middle District of Tennessee
at Nashville
ALICE M. BATCHELDER,
Circuit Judge. Defendant-appellant Gregory
Steven Horn appeals the sentence imposed
following his conviction on one count of bank
robbery in violation of 18 U.S.C. §§ 2113(a)
and (d). Horn contends only that the district
court erred in sentencing him as a career
criminal under USSG § 4B1.1. In particular,
Horn argues that his prior felony convictions
for robbery were related offenses under Section
4B1.1, and that they therefore should not have
been counted as separate offenses for purposes
of career offender enhancement. Because we find
that defendant’s prior felony convictions were
not related offenses under Section 4B1.1, we
will AFFIRM
the district court.
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| 04a0027p.06
| 2004/01/20
| Daneshvar
v. INS
State of Michigan Agency
KENNEDY,
Circuit Judge. This case presents an appeal from
the Board’s order denying Petitioner’s
application for asylum and denying his petition
for adjustment of status. We grant but stay the
enforcement of the order denying the application
for asylum.
We reverse the Board’s denial of
his petition for adjustment of status and remand
that petition for further proceedings.
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| 04a0028p.06
| 2004/01/22
| USA
v. Bolka
Western District of Tennessee
at Memphis
KENNEDY, Circuit Judge.
Defendant Joseph F. Bolka, III pleaded guilty to
five counts of possession of methamphetamine
with the intent to distribute and distribution
and one count of manufacturing methamphetamine
in violation of 21 U.S.C. § 841(a)(1).
Defendant now appeals the district court’s
denial of his motion for a sentencing reduction
under the “safety valve” provision of the
United States Sentencing Guidelines (“U.S.S.G.”)
§ 5C1.2(a). For the reasons explained below, we
AFFIRM the judgment and defendant’s sentence.
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| 04a0029p.06
| 2004/01/22
| Robinson
v. Stegall
Eastern District of Michigan
at Detroit
ALAN
E. NORRIS, Circuit Judge. The State of Michigan
appeals on behalf of Warden Jimmy Stegall from
the grant of a writ of habeas corpus, 28 U.S.C.
§ 2254, to prisoner Reginald Robinson. On
appeal, we must determine whether the alleged
violation of a consent judgment entered into by
the parties is sufficient to warrant granting
the writ despite the fact that the district
court did not specify which, if any, federal
constitutional right had been violated. Because
a district court may grant a writ of habeas
corpus “only on the ground that [a state
prisoner] is in custody in violation of the
Constitution or laws or treaties of the United
States,” 28 U.S.C. § 2254(a), we hold
that the grant of the writ under the
circumstances presented by this case was
premature and therefore remand the matter for
further proceedings consistent with this
opinion.
|
| 04a0030p.06
| 2004/01/23
| McFarland
v. Yukins
Eastern District of Michigan
at Detroit
JOHN R. GIBSON, Circuit Judge.
The district court
granted Paula McFarland a conditional writ of
habeas corpus on the ground that the attorney
defending McFarland against drug charges labored
under a conflict of interest because he also
represented her daughter on the same charges.
The Warden appeals the grant of the writ,
arguing that McFarland did not justify her
failure to raise the conflict of interest
argument on appeal from the conviction, that the
defense attorney's representation of McFarland
and her daughter did not violate McFarland's
Sixth Amendment right to counsel, and that
McFarland received an evidentiary hearing to
which she was not entitled. We affirm the grant
of the conditional writ.
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