Adkins v. Commonwealth of Kentucky8/27/1999
THE COURT OF APPEALS OF THE STATE OF KENTUCKY
TO BE PUBLISHED
OPINION REVERSING AND REMANDING
Timothy Adkins, (Adkins) appeals from the judgment of the Pike Circuit Court entered on May 27, 1997, that convicted him for his third offense of Operating a Motor Vehicle While Under the Influence of Alcohol (Kentucky Revised Statutes (KRS) 189A.010(1) and (4)(c)). We reverse and remand for further proceedings.
Adkins was arrested on September 9, 1995, and subsequently indicted by a Pike County Grand Jury, on November 14, 1995, on one felony count and one misdemeanor count. Count one was for operating a motor vehicle with an alcohol concentration of or above 0.10 or while under the influence of alcohol or other substance which impairs driving ability (DUI), fourth offense, a Class D felony (KRS 189A.010(1)and(4)(d)). Count two was for operating a motor vehicle while license is revoked or suspended for driving while under the influence, first offense, a Class B misdemeanor (KRS 189A.090(2)(a)). After the trial court suppressed one of Adkins' prior DUI convictions, count one of the indictment was amended to DUI, third offense, a misdemeanor. On May 13, 1997, Adkins pled guilty to the misdemeanor DUI charge and the misdemeanor driving on a suspended license charge. On October 3, 1997, at his sentencing hearing, Adkins moved the circuit court to remand the case to Pike District Court on the grounds that the district court has exclusive jurisdiction over misdemeanors, and that the circuit court lost jurisdiction of the case when the only felony charge was reduced to a misdemeanor. However, the circuit court denied the motion and sentenced Adkins to twelve months in the county jail to be probated after serving thirty days of the sentence. This appeal followed.
KRS 23A.010 and 24A.110 vest circuit courts with jurisdiction over felonies and district courts with jurisdiction over misdemeanors. Adkins claims that the circuit court lost jurisdiction of his case when the felony charge was amended to a misdemeanor and that the trial court acted outside its jurisdiction when it sentenced him rather than remanding the case to the district court for sentencing. The Commonwealth argues that Adkins waived his right to object to the circuit court's jurisdiction when he submitted himself to the jurisdiction of the circuit court by pleading guilty to the two misdemeanor charges. However, by entering a plea of guilty a defendant does not waive a claim that the court lacked the power to adjudicate a charge against him. State v. Perank, 858 P.2d 927, 930 (Utah 1992), citing Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-04, 40 L.Ed. 628, 636 (1974). Objections to jurisdiction can be made at any time, and cannot be waived. Commonwealth v. Griffin, Ky., 942 S.W.2d 289, 290-91 (1997); Commonwealth Health Corporation v. Croslin, Ky., 920 S.W.2d 46, 47 (1996); and Duncan v. O'Nan, Ky., 451 S.W.2d 626, 631 (1970).
As to the merits of the issue, the Commonwealth relies upon Broughton v Commonwealth, Ky.App., 596 S.W.2d 22 (1979), and argues that when a felony count of an indictment is dismissed and the only remaining charge is a misdemeanor, the jurisdiction originally conferred upon the circuit court as a result of the felony charge is retained. However, we believe Broughton is distinguishable on the grounds that in Broughton, the dismissal of the felony charge occurred during the trial, whereas in the case sub judice, the felony charge was reduced to a misdemeanor before the trial.
In Jackson v Commonwealth, Ky., 806 S.W.2d 643 (1991), where there were two separate indictments, one for a felony and one for a misdemeanor, and the felony indictmen
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