Jan08 Advo.pmd - e-archives Home

GUIDE TO KENTUCKY SENTENCING LAW
AGGREGATING SENTENCES
THE ADVOCATE Volume 30, No.1 January 2008
Multiple misdemeanor convictions cannot be aggregated for more than one year. KRS 532.110(1)(b).
The exception is misdemeanors committed while on misdemeanor probation, which can run either
concurrent or consecutive. KRS 533.040(3), Walker v. Commonwealth, 10 S.W.3d 492 (Ky.App.1999).
Multiple simultaneous convictions for Class C and D felonies cannot be aggregated for more than
20 years. KRS 532.110(1)(c). This does not apply to convictions for new felonies committed while
already on felony probation or parole. In those cases, the consecutive sentences can exceed 20
years. Devore v. Commonwealth, 662 S.W.2d 829 (Ky.1984).
The limit of simultaneous aggregated consecutive felonies of any class is 70 years. KRS
532.110(1)(c).
No sentence of a term years, received at the same time as a life sentence, can run consecutively to
that life sentence. Bedell v. Commonwealth, 870 S.W.2d 779 (Ky.1993). This does not apply when
the defendant was already on probation or parole at the time of the offense. See Stewart v.
Commonwealth, 153 S.W.3d 789 (Ky.2005), in which the defendant had to serve-out a prior sentence
before he could start his life sentence.
CONSECUTIVE VS. CONCURRENT
A later-imposed concurrent sentence is deemed to have commenced at the beginning of the original
sentence. Lienhart v. Commonwealth, 953 S.W.2d 70 (Ky.1997), KRS 197.035(2).
Generally, a definite (misdemeanor) term of imprisonment must run concurrently with an indefinite
(felony) term of imprisonment, and serving-out the indefinite term will satisfy both sentences. KRS
532.110(1)(a). This applies even when the sentences are imposed by different courts. Powell v.
Payton, 544 S.W.2d 1 (Ky.1976).
However, although the general rule is that misdemeanor sentences must run concurrent to felony
sentences, and that consecutive misdemeanor sentences cannot exceed one year, sentences for
new felonies or misdemeanors committed while on probation can run consecutively to revoked
felony or misdemeanor sentences.
Generally, when a new offense is committed while a defendant is still on probation:
A sentence for a felony committed while on felony probation must run consecutively to the probated
felony sentence. KRS 533.060(2), Brewer v. Commonwealth, 922 S.W.2d 380 (Ky.1996). Although
KRS 533.040(3) seems to require that the probation first be revoked before it can run consecutively,
KRS 533.060(2) controls over KRS 533.040(3), so the sentences have to run consecutively regardless
of whether the probation has been revoked.
Furthermore, although KRS 532.110(2) allows sentences to be run concurrently if the judgment
does not specify how they are to run, in the case of felonies committed while on felony probation,
the Department of Corrections will run those sentences consecutively, whether the judgment is
silent on the matter or not. Riley v. Parke, 740 S.W.2d 934 (Ky.1987).
A sentence for a felony committed while on misdemeanor probation can run consecutively to the
probated misdemeanor sentence, but does not have to. KRS 533.040(3), Warren v. Commonwealth,
981 S.W.2d 134 (Ky.App.1998). KRS 532.110(1) requires the misdemeanor time to run concurrently
with the felony time. On the other hand, KRS 533.040(3) says that a revoked sentence of probation
can be run consecutively. Since the statutes conflict, the court can do either.
75
NOTES