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THE ADVOCATE Volume 30, No. 1 January 2008
A sentence for a misdemeanor committed while on felony probation can run consecutively to
the probated felony sentence, but does not have to. KRS 533.040(3), Snow v. Commonwealth,
927 S.W.2d 841 (Ky.App.1996). This is the same conflict between the same two statutes as
above, with the same result: the court can run the sentences either concurrently or consecutively.
A sentence for a misdemeanor committed while on misdemeanor probation can run consecutively
to the probated misdemeanor sentence, but does not have to. KRS 533.040(3), Walker v.
Commonwealth, 10 S.W.3d 492 (Ky.App.1999). Although KRS 532.110(1)(b) prohibits aggregated
misdemeanors to exceed 1 year, KRS 533.040(3) allows the sentences to be run consecutively
when, and only if, the probated sentence has already been revoked.
KRS 533.040(3) also requires that, when a defendant is serving a sentence and has an outstanding
probated sentence which has not yet been revoked, that the probated sentence has to run
concurrently to the time the defendant is serving unless the probated sentence is revoked,
either (1) prior to the defendant’s parole or (2) within 90 days that the grounds for revocation
come to the attention of the Department of Corrections, which ever comes first. This statute
was designed to prohibit prosecutors from waiting till a defendant serves out, and then revoking
him on the probation and sending him right back to prison. See the commentary. Kiser v.
Commonwealth, 829 S.W.2d 432 (Ky.App.1992).
SPECIAL SITUATIONS IN WHICH SENTENCES MUST RUN CONSECUTIVELY
Sex Crimes - Sentences for two or more sex crimes involving two or more victims must run
consecutively. KRS 110(1)(d). The exact meaning and application of this statute has not yet
been litigated.
Ammunition - When sentenced for the use of armor-piercing or flanged ammunition and
sentenced for committing the underlying crime, those sentences must run consecutively. KRS
527.080(3).
Escape – Sentences imposed for the crime of escape must run consecutively to any other
sentence the defendant must serve, even if the Commonwealth waits more than 90 days to
revoke the prior probations. KRS 532110(3) controls over KRS 533.040(3). Wilson v.
Commonwealth, 78 S.W.3d 137 (Ky.App.2001).
Awaiting Trial – When a defendant has been held to answer charges in District Court, has been
released on bond, and commits a new offense after being indicted by the grand jury, the
defendant is “awaiting trial” for the purposes of KRS 533.060(3) even if he has not yet been
formally arraigned in Circuit Court and even if he does not know he was indicted. The sentences
had to be run consecutively. Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999).
When a defendant has pled guilty and commits a new offense while awaiting sentencing, he is
“awaiting trial” for the purposes of KRS 533.060(3) even if no trial was scheduled. Cosby v.
Commonwealth, 147 S.W.3d 56 (Ky.2004).
KRS 533.060(3) controls over KRS 532.110(1), so that if a felony is committed while awaiting trial
for even just a misdemeanor, the two sentences have to run consecutively. Handley v.
Commonwealth, 653 S.W.2d 165 (Ky.App.1983).
A person shock-probated on a felony sentence may still be required to serve a concurrent
misdemeanor sentence which was not also shock-probated. Romans v. Brooks, 637 S.W.2d 662
(Ky.App.1982).
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NOTES