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Adams v. Commonwealth7/14/2000
ohibitions against probation in KRS 533.060(2) and KRS 532.045. KRS 532.080(5) and (7); KRS 533.030(7); see also KRS 532.210 (home incarceration of Class D felons); Commonwealth v. Meyers, Ky. App., 8 S.W.3d 58, 61 (1999). It must be noted that those amendments to KRS 532.080(5) and (7) were enacted eighteen (18) years after KRS 533.060(2) was enacted , and the amendment to KRS 533.030(7) was enacted ten (10) years thereafter. In Brewer v. Commonwealth, Ky., 922 S.W.2d 380 (1996), the Court held that where the statutes could not be reconciled, KRS 533.060(2) controlled over KRS 533.040(3) because it was the most recently enacted of the two statutes. See also Commonwealth v. Schindler, Ky., 685 S.W.2d 544 (1984). In viewing the two statutes in conflict with KRS 533.060(2), we do not believe they can be reconciled. Hence, we believe that KRS 532.080(5) and KRS 533.030(7) control over KRS 533.060(2) as to eligibility for probation for Class D (nonviolent - in the case of a PFO I or II) felons who commit the felonies while on parole, probation, etc. Accordingly, the trial court erred in ruling as a matter of law that Adams was ineligible for probation on the charges of operating a motor vehicle on a suspended license, PFO II, and first-degree bail jumping. Thus, we must remand for re-sentencing on these offenses in light of this ruling.
As to the DUI 4th conviction, the court also erred in adjudging that KRS 533.060(2) precluded consideration for probation. Chapter 189A has its own provisions regarding probation for DUI offenses in KRS 189A.010. Thus, the DUI statute is the more specific statute and is controlling here.
KRS 189A.010(4)(d) designates a fourth or subsequent offense DUI a Class D felony which, under KRS 532.060(d), requires a sentence of 1-5 years. KRS 189A.010(7) provides in pertinent part:
For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release.
Although the minimum sentence for DUI 4th is one year, under KRS 189A.010(7), the court can nevertheless probate all but 120 days of the sentence, since that is the "minimum term of imprisonment" which cannot be probated. Thus, in the instant case, Adams was eligible for probation as to 245 days of his one-year sentence. KRS 533.010(2) provides that the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge before imposition of a sentence of imprisonment. Accordingly, we vacate the sentence on the DUI 4th offense and remand for the court to consider probation on that offense.
For the reasons stated above, the judgment of the Fayette Circuit Court is vacated and this case is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
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