Kentucky Law Blog - Try it, you'll like it.

Appellee argued appellant appealed the wrong order.   However, the “relation forward” concept may properly be applied to this matter so as to allow what is a premature notice of appeal from an intermediate order to proceed even though a second notice of appeal was not taken from the final order.  

In Johnson v. Smith, the Kentucky Supreme Court stated as follows: In federal appellate practice a premature notice of appeal (absent prejudice), in reasonable circumstances, is deemed simply to relate forward and become effective on the date the trial court tenders its final judgment. See FirsTier Mtge. v. Investors Mortgage Ins. Co., 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) [emphasis original].

Appellees argue that the appeal is untimely because appellant failed to notice her motion for a hearing, which is a requirement under the Rules of Practice of the Jefferson Circuit Court (JRP), and which omission arguably would render the motion a nullity under Kentucky case law.

Appellees add that although appellant subsequently filed a second motion seeking to set the matter for a hearing, the motion was filed after expiration of the mandatory ten (10) days provided under CR 59.05.  Hence, appellees conclude, the CR 59.05 motion was untimely and the trial court was without jurisdiction to consider it.  

As a result, the “appeal window closed 30 days after the circuit court granted Straub and Hagan summary judgment.” 

Appellant responds that, although Carnahan is factually distinguishable, it does stand for the principle that a party may obtain a hearing date on a motion after it has been served. 

Having considered the parties’ arguments, and being sufficiently advised, COA determined that appellees’ motion is not well taken. While we agree that Carnahan controls the resolution of this matter, we disagree with appellees’ interpretation of its holding and denied the motion to dismiss the appeal.

We construe Carnahan to articulate a concept not specifically defined in the older cases cited by appellant which establishes that a motion without a notice of hearing is merely defective at the time of its filing, rather than a nullity, but that the defect must be cured within a reasonable time lest the movant’s good faith become an issue with a potentially adverse effect on the “character” of the motion as found in Carnahan.

This was an interesting case in which a former attorney general for the Commonwealth was permitted to sit in a criminal trial.  AKA Juror 54299.

The COA rejected the defendant's argument that Juror 54299’s special knowledge about the criminal justice system would necessarily have affected any decision he made in this case and may have influenced other members of the jury during deliberations.

The rehabilitation of Juror 54299 was not at issue in this case. Juror 54299 did not make any disclosure to the court. He simply revealed that he had served as Attorney General more than a decade earlier. He gave no indication that he had any bias or that he had formed any preconceived opinion regarding Chapman’s guilt or innocence.  

On the contrary, he emphasized that he could decide the case fairly based upon the evidence presented.

Opening and closing statements are not evidence, and wide latitude is granted to counsel in summarizing the evidence at these beginning and ending points of a trial. Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987).

It is not necessary that the Commonwealth obtain a conviction in order to accomplish revocation of probation.   Probation is a privilege rather than a right. One may retain his status as a probationer only as long as the trial court is satisfied he has not violated the terms or conditions of the probation.

COA affirmed prison disciplinary action based on chain of custody of drug testing since the record contains a complete chain of custody form.

Where “some” evidence supports the decision of a prison disciplinary body, that ruling may not be disturbed on appeal. Smith v. O’Dea, 939 S.W.3d 353 (Ky.App., 1997).

Morgan appealed denial of her motion to suppress evidence following a police stop. Following a hearing, the court denied the motion and entered findings of fact and conclusions of law. Morgan subsequently entered a conditional guilty plea pursuant to RCr 8.09.

Morgan argues on appeal that the police were not justified in stopping the vehicle in which she was a passenger, and so the evidence should have been suppressed.  COA agreed, and reversed and remanded.

Review of a trial court’s decision on a motion to suppress is a two-step process. 

First, RCr 9.78 provides that following a hearing on a suppression motion, the factual findings of the trial court shall be conclusive if supported by substantial evidence. 

Next, the question becomes whether the trial court correctly applied the rules of law regarding determinations of reasonable suspicion and probable cause to the established facts. Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998), A reviewing court should give due weight to inferences drawn from the historical facts by resident judges and local law enforcement officers. Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

The trial court concluded that reasonable and articulable suspicion existed to justify the investigatory stop of the vehicle by virtue of the anonymous tip, together with the knowledge of the subjects’ “drug related reputation,” and the finding of an attempt to elude police or at least lead them away from the mobile home.

Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver are unreasonable under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979).

Defendant may raise issue of ineffective assistance of counsel in post-trial motion.

Kotila has since been superceded by statute. In 2005, the General Assembly amended KRS 218A.1432(1)(b) to make it unlawful for a person to possess two or more of the chemicals or pieces of equipment to manufacture the drug.

Here is another military retirement case dividing equally the military retirement earned while the parties were married.

Comment.  As a former soldier, JAGC, and now military retiree, I cannot fathom this Court's total misunderstanding of a soldier's military retirement and constantly treating it the same as a vested civilian pension plan.  The statute provides for a 'just' distribution of the property.  Just does not mean an arbitrary 50-50 split.  All federal law permits is a state to divide the military retirement in an manner not to exceed 50%.  Federal law neither mandates nor requires such a split, thus leaving it to the states to do it justly and fairly.  Why is 'equal' not 'just' when the retirement has not vested?  Several reasons:

• Soldier must continue to serve to be eligible for retirement such that the continued service for vesting should be factored into the formula for a just distribution.
• The continued service is not without risks, to wit: injury, disability, loss of other income possibilities to become retirement eligible to name a few.
• The receiving spouse does nothing during the non-vesting period other than sit and wait.
• Neither this decision or the other decisions address the military spouse's contribution toward a survivor benefit plan (SBP) which comes disproportionately out of the soldier's share or that continued service provides benefits in other areas, to wit: dependents indemnity compensation, medical, commissary, and other privileges.
• Does this mean 51-49, etc. is an appropriate split?  No. This proposition simply means that it is time to recognize that continued service and risks are inherent on the soldier's side of this obligation to vest the retirement and should accordingly be accounted for in the division.  For example, there are other nonpublished decisions whereby the courts adjust maintenance to by-pass the limitations on dividing disability retirement and deprive a soldier of income now that he/she is disabled and whose earning's potential has been depleted while earning that retirement.