Immediately after the client has been sentenced, trial counsel should obtain an order allowing the client to proceed on appeal in forma pauperis (IFP) and apppointing the DPA to represent the client on appeal. Without such an orders, the circuit clerk's office is reluctant to file a timely Certificate of Service or to file the Notice of Appeal in the absence of a filing fee.

The IFP order should specifically refer to KRS Chapter 31 and appoint DPA to handle the appeal. DPA must be appointed to appeal even if DPA represented the client below. Otherwise, the appellate courts and DPA will consider the appellant to be represented on appeal by trial counsel, or proceeding pro se.

In Purvis v. Commonwealth, (Ky. S.Ct., Opinion Rendered March 23, 2000), the Kentucky Supreme Court held KRS 532.043 was unconstitutional as applied to offenses committed before the effective date of the act (July 15, 1998) when both elements of the ex post facto law test are satisfied

This web page allows you to listen to the oral argument made before the 8^th Circuit U.S. Court of Appeals.

Reversible Errors, a project of the Office of the Federal Public Defender for the Districts of Northern New York & Vermont, lists cases in which a criminal defendant received relief from a U.S. Court of Appeals or the U.S. Supreme Court.

QUESTION: Can a conviction now under appeal be used to enhance as PFO?

ANSWER: No. Melson v. Commonwealth, 772 SW 2d 631 (Ky. 1989) states that a prior conviction cannot be utilized for TRUTH IN SENTENCING or PFO until the case is disposed of by the reviewing court if discretionary review has been granted. It may, however, be utilized if the conviction is being collaterally attacked. A valid interpretation would be that if a motion for discretionary review is pending on the issues (rather than on collateral matters such as an RCT 11.42 & CR 60.02), the prior can't be used. Clearly, if the appeal is a matter of right appeal, the conviction cannot be used.

Thompson v. Commonwealth, 862 SW 2d 871 (Ky.1993) states that a conviction can only be relied upon (for TIS & PFO) if it is a final judgment, meaning termination of the appeal or expiration of the time for taking the appeal. Kohler v. Commonwealth, 944 SW 2d 146 (Ky. App. 1997) and Tabor v. Commonwealth 948 SW 2d 569 (Ky. App. 1997), also both indicate that convictions on appeal cannot be used in TIS or PFO hearings.

Trial attorneys, appellate attorneys, and others working to defend the accused, please share your knowledge. If you have a practice tip, courtroom observation, or other comments which would be useful to share with other public defenders, please email it to: mdugger@mail.pa.stat.ky.us.

Litigation tips and comments for The Practice Corner are collected by Misty Dugger, Assistant Public Advocate, Appellate Branch, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky, 40601, email: mdugger@mail.pa.state.ky.us

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