Criminal – postconviction relief, succeeding judge, sixteen year delay in making CR 60.02 motion: Oller v. Commonwealth (COA 8/21/2009)

Oller v. Commonwealth
2008-CA-000977 8/21/09 2009 WL 2569080

Opinion by Senior Judge Harris; Judges Moore and Nickell concurred.

The Court affirmed an order of the circuit court denying appellant’s motion for post-conviction relief filed pursuant to CR 60.02. The Court held that the judge succeeding the recusing judge was authorized to hear the motion, even though the procedures for appointment of a special judge, as set forth in KRS 26A.020, were not followed and the judge acting in the case after the recusal and prior to the succession was not proper. The Court further held that appellant waived the issue of whether the succeeding judge had authority to consider the motion, as he failed to raise the issue in the trial court. The Court finally held that appellant’s sixteen-year delay in bringing the motion was unreasonable and therefore, the trial court did not abuse its discretion in denying the motion.