CRIMINAL LAW – Military discharge in lieu of court-martial and violation of probation: Commonwealth of Kentucky v. Tommy Lopez (SC 8/27/2009)

Commonwealth of Kentucky v. Tommy Lopez
2008-SC-000308-DG August 27, 2009
Opinion by Chief Justice Minton. All sitting; all concur.

While he was serving in Iraq, the Army charged Lopez with viewing child pornography on a computer. At the time, Lopez was on probation in Kentucky for attempted first degree sexual abuse. In lieu of a court-martial, Lopez sought and received a voluntary discharge from the Army. In his request for the discharge, Lopez admitted his guilt. Upon his return to Kentucky, Lopez’s probation officer initiated revocation proceedings. The circuit court revoked Lopez’s probation, but the Court of Appeals reversed, holding that “an admission to the violation of a general order under [Unified Code of Military Justice] Article 92, by itself, is insufficient to justify a revocation of probation.”

The Supreme Court noted that under KRS 533.030 probation may be revoked upon commission of “another offense.” Therefore, the Court reasoned, Lopez’s probation could only be revoked if his violation of UCMJ Article 92 was punishable by imprisonment or fine. The Court concluded that since infractions of Article 92 are punishable by up to two years confinement, the trial court did not abuse its discretion in revoking Lopez’s probation. However, the Court cautioned that its holding “should not be construed to mean that a trial court must revoke probation each time a person on probation serving in the armed forces violates a military law. Rather, we simply hold that under Kentucky law, a trial court may revoke probation if a person on probation serving in the armed forces violates a military law and the

possible punishment for that violation includes a fine or imprisonment.”

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