DIANE AUSTIN HILL v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 21, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002364-MR
DIANE AUSTIN HILL
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN, III, JUDGE
ACTION NO. 98-CR-00015
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER DISMISSING APPEAL
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Diane Austin Hill (Hill) appeals from an order
of the Daviess District Court which sentenced her to twelve
months’ incarceration, probated for two years following her
conditional guilty plea to two counts of theft by unlawful taking
of property valued at less than $300.
Having noted sua sponte
that this Court is without jurisdiction to consider this matter,
we order that her appeal be dismissed.
On January 6, 1998, Hill was indicted on one count of
theft by unlawful taking of property valued at $300 or more and
one count of theft by unlawful taking of property valued at less
than $300.
Hill’s first trial before the Daviess Circuit Court
resulted in a mistrial when the jury was unable to agree upon a
verdict.
On June 20, 2000, Hill filed a motion in the Daviess
Circuit Court seeking to suppress any and all evidence taken from
her at the time she was stopped and arrested on the grounds that
the stop was not based on probable cause, that the search of her
purse was improper because there was no search warrant, and
because she was not advised of her rights as required by Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On August 18, 2000, the Daviess Circuit Court denied Hill’s
motion.
Before the second trial could be held, Hill and the
Commonwealth made a joint motion before the Daviess Circuit Court
asking that the count of theft by unlawful taking of property
valued at $300 or more be amended to one count of theft by
unlawful taking of property valued at less than $300.
In an
order entered September 11, 2000, the Daviess Circuit Court
granted the motion and, noting that both charges against Hill
were now misdemeanors, remanded the matter to the Daviess
District Court for final disposition.
Despite the fact that the
matter had been remanded to the Daviess District Court for final
disposition and before the Daviess District Court could act, Hill
filed a notice of appeal in the Daviess Circuit Court from the
order denying her motion to suppress.
On September 18, 2000, the Daviess District Court
entered an “Order on a Misdemeanor Conditional Plea of Guilt
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Pursuant to North Carolina v. Alford.”1
Under the terms of the
order, Hill entered an Alford plea to two counts of theft by
unlawful taking of property valued at less than $300 and was
sentenced to two concurrent twelve month terms in the Daviess
County jail probated for two years.
No further proceedings were conducted by either court
in this matter, and Hill filed her notice of appeal with this
Court on October 6, 2000.
Once again, Hill stated that she was
appealing from the Daviess Circuit Court’s denial of her motion
to suppress.
However, on page one of her appellate brief, Hill
acknowledged that “[t]his appeal arises as a matter of right,
from a criminal conviction rendered against [her] by the Daviess
District Court, dated September 19, 2000.”
Pursuant to KRS 24A.110, district courts have exclusive
jurisdiction over misdemeanor offenses.
Although the original
indictment was properly before the Daviess Circuit Court because
it contained a felony and a misdemeanor charge, once the felony
charge was amended to a misdemeanor charge, the Daviess Circuit
Court acted properly in remanding the matter to the Daviess
District Court for final disposition.
See Jackson v.
Commonwealth, Ky., 806 S.W.2d 643, 646 (1991)(holding that where
misdemeanor and felony charges are combined in single indictment
and felony charge is later dismissed, circuit court must
immediately remand remaining misdemeanor charge to district court
for disposition).
1
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
-3-
We find that once the Daviess District Court entered
its order on Hill’s Alford plea, the only avenue of appeal
available to her by law was an appeal to the Daviess Circuit
Court.
Pursuant to KRS 23A.080(1), direct appeals from final
actions of a district court are to be taken to the circuit court
level.
If the Daviess Circuit Court were to rule against her,
then the only way Hill could present this matter to us for review
would be a motion for discretionary review pursuant to CR 76.20.
The records on appeal from the Daviess District and Circuit Court
show that Hill failed to appeal the Daviess District Court’s
order to the Daviess Circuit Court, therefore we are unable to
entertain this appeal.
Nor do we believe that Hill’s notice of appeal from the
Daviess Circuit Court’s order denying her motion to suppress is
sufficient to trigger our jurisdiction.
That order is merely a
ruling on an evidentiary issue alone and was not a final
disposition of the matter as was the Daviess District Court’s
order of September 18, 2000.
Having considered the parties’ arguments, this appeal
is hereby dismissed.
ALL CONCUR.
ENTERED: September 21, 2001
Daniel T. Guidugli
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dan Jackson
Hartford, KY
A. B. Chandler, III
Attorney General
Tami Allen Stetler
-4-
Assistant Attorney General
Frankfort, KY
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