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
