Criminal – Sentence credit, probation revocation, civil/criminal contempt: Nicely v. Commonwealth (COA 4/24/2009)

Nicely v. Commonwealth
2009 WL 1097905
Opinion by Judge Wine; Chief Judge Combs concurred; Senior Judge Buckingham concurred in result only by separate opinion. The Court reversed and remanded an order of the circuit court denying appellant’s CR 60.02 motion for credit for time served in the county jail while he participated in a drug court program.

In a case of first impression, the Court held that a court was free to use either its civil or criminal contempt powers, as opposed to revoking a defendant’s probation or modifying previously imposed conditions of probation. However, the court could not impose contempt sanctions for the same violations of the conditions of probation which were used to revoke the probation. Since the trial court previously found that appellant violated the conditions of drug court, it abused its discretion when, nunc pro tunc, it also found him in contempt. As a result, the court erred when it failed to follow the mandates of KRS 532.120(3) by awarding appellant the appropriate credit for time served before final sentencing.

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