Tuesday, July 2, 2013

KYSC - Smith - Diversion Revocation

Michelle Smith v. Commonwealth,  2012-SC-000034-DG, (6/20/13)

In September, 2009, Ms. Smith entered into a diversion agreement after pleading guilty to possession of drug paraphernalia, second or subsequent offense.  At the time, the crime was a Class D felony.  In April, 2010, the crime became a Class A misdemeanor.  In October, 2010, a diversion revocation hearing was held, and Ms. Smith requested that the new law be applied to her.  The trial court refused to do so, and sentenced Ms. Smith to felony time under the old law.  The Court of Appeals affirmed.  The Supreme Court reversed and remanded, holding that since no final judgment had been entered when Ms. Smith violated the terms of her diversion agreement, any law that had gone into effect that would mitigate her sentence should have been applied at her diversion revocation hearing.  Paul Sysol preserved the issue below.

Contributed by Jason Apollo Hart