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PROBATION ELIGIBILITY
THE ADVOCATE Volume 30, No.1 January 2008
If a defendant is statutorily eligible for probation, KRS 533.010(2) requires that the court “shall
consider” probation, and that probation “shall be granted” unless imprisonment is necessary for
the protection of the public. A blanket refusal to consider probation is reversible sentencing error.
Patterson v. Commonwealth, 555 S.W.2d (Ky.App.1977).
KRS 533.060(2) generally prohibits probation for felonies committed while on felony probation.
However, KRS 533.030(6) explicitly says that that prohibition does not apply to Class D felonies.
Therefore, even if the sentence for the new offense must run consecutively to the sentence for the
old one, the sentence for the new offense can still be probated if it is a Class D felony. Adams v.
Commonwealth, 46 S.W.3d 572 (Ky.App.2000).
Note also that KRS 533.030(6) also allows probation for a number of Class D Felonies for which
probation is prohibited in KRS 532.045. (But does not cover those charges which cannot be
probated under KRS 439.265 or 439.3401.)
The prohibition against probating sentences for crimes involving the use of a projectile weapon
requires the actual “use” of the weapon. Mere possession of it at the time of the crime is not
enough. Haymon v. Commonwealth, 657 S.W.2d 239 (Ky.1983).
A defendant convicted of PFO based on prior convictions of only Class D felonies, is eligible for
probation if none of the crimes involved violence or a sex crime. KRS 532.080(7).
INELIGIBLE FOR PROBATION
Violent Offenders - Violent offenders as defined by KRS 439.3401 (see also KRS 532.047 and
533.010(2)), unless it is ordered as allowed by 439.3401, which denies probation until 85% of the
sentence is carried out. No shock probation at all. (KRS 439.265)
Sex Offenders - Anyone convicted of Rape 2 nd degree, Sodomy 2 nd degree, Incest, Unlawful
Transaction with a Minor 1 st degree (involving sexual activity), Use of a Minor in a Sexual
Performance, or attempt to commit these offenses. (KRS 439.265). Note that in 2007 a good number
of crimes involving human trafficking were also added to the violent offender statute. Inasmuch as
some of those crimes were Class C and D felonies, their status as “violent offenses” is unclear, as
well as the appropriate parole eligibility.
Anyone convicted of Rape 2 nd degree, Sodomy 2 nd degree, Promoting Prostitution 1 st , 2 nd , or 3 rd
degree, Permitting Prostitution, Incest, Use of a Minor in a Sexual Performance, Promoting a Sexual
Performance by a Minor, Using Minors to Distribute Material Portraying a Sexual Performance by
a Minor, or attempt to commit these offenses
AND WHO EITHER
uses force, causes bodily injury, befriends the child as a stranger solely for purposes of committing
one of these offenses, uses a dangerous instrument or deadly weapon, has a prior conviction for
one of these offenses, kidnapped the minor for the purpose of committing one of these offenses,
committed one of these offenses on more than one minor at the same time, engaged in substantial
sexual conduct with a minor under 14 while committing one of these offenses, or occupied a
position of special trust and engaged in substantial sexual conduct while committing one of these
offenses. (KRS 532.045, but see KRS 533.030(6).)
PFO’s - Anyone convicted of PFO 2 nd , unless all of the convictions are for Class D felonies and
none of them involved acts of violence. (KRS 532.080) Anyone convicted of PFO 1 st , unless all of
the convictions are for Class D felonies and none of them involved acts of violence or the
commission of a sex crime. (KRS 532.080)
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NOTES