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THE ADVOCATE Volume 30, No. 1 January 2008
Projectile Weapon - Anyone convicted of a Class A, B, or C felony which involved use of a
projectile weapon. (KRS 533.060), Haymon v. Commonwealth, 657 S.W.2d 239 (Ky.1983).
New Offense while on Parole or Probation – KRS 533.060(2), but see KRS 533.030(6). See the
discussion above.
Armed and Wearing Body Armor - Anyone guilty of any felony offense under KRS 218A, 507,
508, 509, 511, or 513, or guilty of possession of a destructive device, unauthorized use of a
motor vehicle, riot 1 st degree or 2 nd , possession of a firearm by convicted felon, unlawful
possession of a weapon on school property, possession of a handgun by a minor, or theft of a
motor vehicle under KRS 514.030 AND wearing body armor and armed with a deadly weapon.
(KRS 533.065)
PROBATION REVOCATION
Generally – When a defendant is probated, he is supposed to be given a written statement
explicitly listing the terms and conditions of his probation. KRS 533.030(5). (See the standard
probation contract.) Nevertheless, the law presumes that anyone on probation knows that
breaking the law may have an effect on his probation. Tiitsman v. Commonwealth, 509 S.W.2d
275 (Ky.App.1974).
Due Process – Although there is no constitutional right to probation or parole, a defendant still
has a constitutional right to due process in revocation proceedings. This is because the
defendant has a liberty interest at stake under the 14 th Amendment. The minimum due process
requirements of a revocation were first applied to parole revocations in Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and extended to probation revocations in
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They are: (1) written
notice of the alleged violations, (2) disclosure of the evidence against the defendant, (3)
opportunity to be heard in person and to present witnesses and documentary evidence, (4) the
right to confront and cross-examine adverse witnesses, (5) a “neutral and detached” hearing
body or court, and (6) written findings of fact as to the evidence relied on and the reasons for
revocation. These requirements were adopted in Kentucky in Murphy v. Commonwealth, 551
S.W.2d 838 (Ky.App.1977).
So, for example:
Requirement (1) was violated in Radson v. Commonwealth, 701 S.W.2d 716 (Ky.App.1986), in
which the defendant was given notice of one ground of revocation, but was actually revoked
on the basis of another ground to which he had not been given notice. See also Baumgardner
v. Commonwealth, 687 S.W.2d 560 (Ky.App.1985), in which the court ordered a revocation
hearing sua sponte after the defendant’s trial and acquittal for receiving stolen property.
Requirements (3) and (4) were violated in U.S. v. Dodson, 25 F.3d 385 (6 th Cir.1994), in which the
defendant was not allowed to testify in his own behalf or present evidence. The court ruled
that, even at revocation hearings, “[i]n order to ensure a constitutionally sufficient opportunity
to contest the allegations and provide evidence in mitigation, a defendant must also be afforded
as a matter of due process the opportunity to be heard in person and to present witnesses and
documentary evidence.” (At 338, emphasis original.)
Requirement (5) was violated in Baumgardner v. Commonwealth, 687 S.W.2d 560 (Ky.App.1985),
in which the judge who presided over the defendant’s trial and acquittal sua sponte ordered a
revocation hearing and presided over that as well.
Requirement (6) was violated in Keith v. Commonwealth, 689 S.W.2d 613 (Ky.App.1985), in
which the defendant was ordered to admit himself to Eastern State Hospital, but the hospital
said he did not need inpatient care and enrolled him in an outpatient program instead. After
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NOTES