9/22/2016
Commonwealth v. Tapp, 2014-SC-000607-DG To Be Published
On February 2, 2012, Tapp received a one-year
sentence for multiple drug related offenses which was probated until February
2, 2013. On January 28, 2013, the Commonwealth’s attorney filed a motion to
review diversion (he was actually on probation). The motion cited numerous
violations for driving on a suspended license. Tapp was subsequently arrested
pursuant to a bench warrant executed the evening of January 31, 2013. On
February 7, 2013, Tapp was brought before the circuit court and a probation
revocation hearing was set for February 12, 2013. At the hearing, Tapp’s
counsel, citing Kentucky Revised Statute (KRS) 533.020(4) and Conrad v.
Evridge, 315 S.W.3d 313 (Ky. 2010), made a motion to dismiss for lack of
jurisdiction. The circuit court denied the motion, revoked Tapp’s probation,
and ordered him to serve his original sentence.
The Kentucky Court of Appeals issued an
opinion on 9/5/2014 vacating the trial court’s order revoking Tapp’s probation.
The Commonwealth requested discretionary review in the Kentucky Supreme Court
which was granted. And the Kentucky Supreme Court held the following:
Justice Keller wrote in the majority
Opinion (joined by Chief Judge Minton, and Justices Hughes, and Noble),
that “We agree with the trial court that a warrant remains pending
beyond the time of service. However, we disagree that it remains pending until
disposition of the matter for which it was issued.” In the Opinion the Court
detailed the method and circumstances for which probation may be extended
without a hearing.
“However, a
court cannot arbitrarily extend the probationary period. A
probationer is
entitled to due process protections, one of which is a "duly
entered court
order." KRS 533.020(4). In this instance, a duly entered court
order is one
supported by probable cause, which requires "facts and
circumstances
'sufficient to warrant a prudent man in believing that the
[probationer]
had committed or was committing an offense."' Gerstein v. Pugh,
420 U.S. 103,
111-12 (1975), citing Beck v. Ohio, 379 U.S. 89, 91 (1964).
Furthermore,
because such an extension is likely to occur without a hearing,
due process
demands that any extension be of limited duration. Therefore, the
trial court may
only extend the period of probation without a hearing until its
next available
criminal docket or as soon as practical thereafter.”
The Court held
that had the trial court extended Tapp’s probationary period at this first
post-arrest appearance the court would have retained jurisdiction. However the
Court did not in Tapp’s case, and therefore it lost jurisdiction.
Justice Wright
authored the dissent and was joined by Justices Cunningham and Venters.
Essentially arguing that there are possibilities for absurd and unjust results
under the majority Opinion.
The Kentucky
Supreme Court held that the Court of Appeals Opinion was affirmed and vacated
Tapp’s probation revocation order. Tapp was represented by Steven Hughes in
the trial court and represented by Jason Apollo Hart on appeal in both
appellate courts. Sam Potter was assigned the case while awaiting an
Opinion after Jason Apollo Hart transferred to Capital Trials East in
Lexington, Mr. Potter is therefore noted as counsel of record on the
Opinion.
Practice Tip:
Tapp (which relied
heavily in Conrad supra) is the first case to explicitly limit
the holding in Whitcomb v. Commonwealth, 424 S.W.3d 417 (Ky. 2014). Whitcomb
held “In summation, we hold that the issuance of a warrant for a probation
violation will toll the period of probation preventing the probationer from
being automatically discharged pursuant to KRS 533.020(4). The warrant,
however, must be issued before the expiration of the period of probation.” Id.
at 420. Now, a key fact to examine when reviewing probation revocation cases is
whether or not the warrant issued was “pending” before the probationary period
expired and whether it was “extended” by the trial court. If the trial court
does not extend the probationary period as described above, then it no longer
has jurisdiction in such instances. If the trial court’s delay in setting the
revocation hearing is the reason for the expiration of the probationary period,
then the motion to revoke should be dismissed and the client should be
discharged from probation.
Contributed by Jason Apollo Hart
