Revoking conditional discharge from prison: HENLEY V. COM. (COA 11/9/2007)

HENLEY V. COM.
CRIMINAL: REVOCATION OF CONDITIONAL DISCHARGE

2006-CA-000897
PUBLISHED: AFFIRMING
PANEL:  BUCKINGHAM PRESIDING; THOMPSON, HENRY CONCUR
COUNTY: CALLOWAY
DATE RENDERED: 11/09/2007

On the motion of the Commonwealth, the trial court revoked Henley’s conditional discharge due to his violating its conditions. Prior to the revocation hearing, Henley moved the court to declare KRS 532.043(5) unconstitutional. The court denied the motion, subsequently revoked Henley’s conditional discharge, and ordered his reincarceration for three years. This appeal by Henley followed.

The issue on appeal is whether KRS 532.043(5) is unconstitutional as a violation of the separation of powers clause of the Kentucky Constitution because the statute gives the judicial branch, rather than the execution branch, the power to revoke 
conditional discharge. COA held the statute is constitutional and thus affirmed the reincarceration.

“The separation of powers doctrine precludes each of the three branches of government from encroaching upon the domain of the other two branches.”  In Mullins v. Commonwealth, 956 S.W.2d 222, 223 (Ky.App. 1997), the COA noted that probation is a function of the judicial branch while parole is a function of the executive branch. In Pedigo v. Commonwealth, 644 S.W.2d 355, 358 (Ky.App. 1982), this court plainly stated that “[f]or all purposes, except supervision, or the lack thereof, there is no difference between conditional discharge and probation.”

Therefore, KRS 532.043(5) does not violate the separation of powers clause by giving the power of revocation of conditional discharge to the courts.

Digested by Michael Stevens

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