Wednesday, April 24, 2013

KY COA - Reilly - Deferred Prosecution

Reilly v. Commonwealth, 2011-CA-001608 (To Be Published) 

The Court of Appeals held that KRS 218A.14151(2) does not require a prosecutor to state substantial and compelling reasons for denying deferred prosecution to an eligible person.  Rather, according to the Court, that statute requires the prosecutor to state an opinion on whether the defendant should receive presumptive probation when deferred prosecution has already been denied.  

The Court of Appeals also holds that a judge cannot grant presumptive probation to a defendant without the prosecutor’s agreement, “[T]he court is without authority to question the prosecutor’s motives when it rejects a request to defer prosecution or to order probation without the prosecutor’s agreement.”  

The Court held that the defendant’s interpretation of the statute, allowing a trial court to decide whether a prosecutor had stated substantial and compelling reasons for denying deferred prosecution, would violate the separation of powers doctrine, citing Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).  [Petition for rehearing/motion for discretionary likely to be filed.]

Contributed by Stephen Buck