Jessica Burdette v. Commonwealth, COA, 11/6/2015, to be
published.
This case is not final and a Motion for Discretionary Review will be filed in the Kentucky Supreme Court.
Following oral argument the Court found that KRS 433.236(3) is more
specific and controls over the much more recently enacted KRS 431.015 which on
its face does not permit peace officers to arrest shoplifters for misdemeanor
shoplifting offenses not committed in their presence. “As the more specific
statute, we interpret KRS 433.236 as controlling in cases of shoplifting.”
Opinion at 6. “Conversely, we interpret KRS 431.015 as generally applying to
other misdemeanor offenses committed in the officer’s presence.” Id.
The
Opinion is troubling for several reasons. KRS 431.015 provides for exceptions
for crimes committed outside of the officer’s presence such as for DUI arrests,
but does not make an exception for misdemeanor shoplifting offenses. In Stogner
v. Commonwealth, 35 S.W.3d 831 (Ky. App. 2000) the Court found that KRS
433.236 was more recent and more specific than the previous arrest statute KRS
431.005. However, here KRS 431.015 is unambiguous, more recent, and more
specific. It is more specific in part because KRS 433.236 applies to felony and
misdemeanor shoplifting offenses while KRS. 431.015 applies to misdemeanor
offenses. If the General Assembly intended for shoplifting offenses to be an
exception it could have easily been included in KRS 431.015, like the exception
for DUI offenses. KRS 433.236(3) seems to apply well to felony shoplifting
offenses but just not misdemeanor shoplifting offenses under KRS 431.015.
Jason
Apollo Hart of the Appellate Branch represented Ms. Burdette on appeal and
at oral argument. Cole Maier preserved this issue for appeal in the
Circuit Court.
This
case is not final and a Motion for Discretionary Review will be filed in the
Kentucky Supreme Court.
