Criminal – PFO, RCr 11.04, DVO: Lisle v. Commonwealth (COA 6/26/2009)

Lisle v. Commonwealth
2007-CA-002240 06/26/2009 2009 WL 1811105

Opinion by Judge Wine; Chief Judge Combs and Senior Judge Buckingham concurred.

The Court affirmed in part, and reversed and vacated in part, and remanded appellant’s conviction for fourth-degree assault, third offense; violation of a domestic violence order; and persistent felony offender in the first degree. The Court first held that a prior conviction for family violence was an essential element of the felony assault offense under KRS 508.032. Because the Commonwealth’s exhibits purporting to evidence prior judgments did not conform to the requirements of RCr 11.04, the Commonwealth failed to prove there was a prior conviction for assault of a family member or member of an unmarried couple. The error was necessarily palpable, allowing for review pursuant to RCr 10.26. While there would not be a retrial on remand, the Court instructed that it would be error for the trial judge to fail to instruct the jury that they could treat the fourth-degree assault, third offense, charge as either a misdemeanor or a felony pursuant to KRS 508.032. The Court declined to review other unpreserved errors and remanded for imposition of sentence on the fourth-degree assault and violation of a DVO charges.

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