If the Commonwealth is attempting to use an out-of-state conviction (either felony or misdemeanor) to enhance an offense in Kentucky, there must be statutory authority for such use. This was the finding of the Court of Appeals in Suttle v. Com.. Suttle deals specifically with the DUI statute but holds that if the legislature is silent concerning the use of convictions in foreign jurisdictions, then they shall not be used. The statute for Failure to Register is as silent about the use of foreign convictions to enhance as the DUI statute was on that subject (the statute was amended for DUIs after this case was decided). Suttle also contains good language about how misdemeanor records from other jurisdictions are not as well maintained as ours so your argument is even stronger is the prior offense is a misdemeanor in the state from which it came.
“We observe that our general recidivist statute (KRS 532.080) is all-inclusive with respect to prior felony convictions. It specifically includes foreign convictions. KRS 189A.010 is silent with respect to DUI convictions from a sister state and, as such, we believe our interpretation of the subject statute is a fair one. Moreover, we observe that the treatment differs as to DUI among the various states. In addition, we envision a practicable problem in proving foreign misdemeanor convictions where records may not be as carefully maintained as in felony offenses. All of this leads us to the conclusion that a policy of using foreign convictions as a basis for enhancement of punishment under KRS 189A.010 is a matter more appropriately directed to the legislature for debate.” Suttle v. Com., 774 S.W.2d 454 (Ky.App.,1989).
Contributed by La Mer Kyle-Griffiths, Juvenile Post Disposition Branch Manager
