Friday, June 12, 2015

KYSC - Cave - Restitution as Jury Question

Cave v. Commonwealth, 2013-SC-000542-MR, 2015 WL 1544451 rendered 4/2/15, NOT TO BE PUBLISHED, affirming.

Mr. Cave waived any right he may have had under the Kentucky Constitution to a jury determination of restitution. But while this is an unpublished opinion, the Court suggests in this case that there may very well be a right to a jury for questions regarding restitution –in a case where the issue has been raised and preserved for appeal:

Cave is correct that Section 7 of the Kentucky Constitution and CR 38.01 guarantee the right to trial by jury in civil cases. However, Cave ignores CR 38.04, which states that the failure to demand a jury trial waives that right. Cave never demanded a jury trial on the issue of restitution; therefore, he waived any right he may have had to one. Because Cave did not seek a jury trial on the issue of restitution, we are not addressing whether he would have been entitled to a jury trial had he done so.
Cave v. Commonwealth, 2015 WL 1544451, at *10 (Ky. Apr. 2, 2015).

Practice tip:  If and when the Commonwealth demands restitution, defense counsel should cite Section 7 of the Ky. Constitution and demand a jury determination of whether restitution should be imposed at all, and if so, in what amount. This will at least preserve the jury question for appeal. Feel free to contact me for briefing on the issue.

Contributed by Susan Balliet