JAMES BUNCH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002009-MR
JAMES BUNCH
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NOS. 02-CR-001964 & 03-CR-003383
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
TAYLOR, JUDGE:
James Bunch brings this appeal from a September
13, 2005, order of the Jefferson Circuit Court denying his Ky.
R. Civ. P. (CR) 60.02 motion to partially vacate his judgment of
conviction.
We affirm.
Pursuant to a plea agreement, Bunch pleaded guilty to
wanton endangerment in the first degree, unlawful imprisonment
in the first degree, and assault in the fourth degree.
1
By
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
judgment entered July 13, 2005, the circuit court sentenced
Bunch to one-year imprisonment and ordered him to pay a
$1,000.00 fine pursuant to Kentucky Revised Statutes (KRS)
534.030.
Some two months thereafter, on September 2, 2005,
Bunch filed a CR 60.02 motion “to strike from the Judgment of
Conviction the fine of $1,000.00.”
Bunch argued that the fine
was not in accordance with the plea agreement entered with the
Commonwealth and that a fine should not be imposed upon a person
found to be indigent.
KRS 534.030(4).
Bunch further contended
that he was an indigent person and unable to pay the fine.
By
order entered September 13, 2005, the circuit court denied
Bunch’s CR 60.02 motion.
This appeal follows.
Bunch contends the circuit court committed error by
denying his CR 60.02 motion to strike from the judgment of
conviction the $1,000.00 fine.
He argues that the fine was not
contained within the plea agreement and that the circuit court
accepted the plea agreement in open court.
Moreover, Bunch
argues he is an indigent person within the meaning of KRS
534.030(4) and thus, not subject to the fine.
However, for the
reasons set forth hereafter, we decline to reach the merits of
Bunch’s appeal.
It is well-established that a CR 60.02 motion is not a
substitute for a direct appeal.
McQueen v. Commonwealth, 948
-2-
S.W.2d 415 (Ky. 1997).
Indeed, a defendant may not litigate
issues in a CR 60.02 motion that reasonably could have been
presented by direct appeal.
Id.
In the case at hand, the proper procedure for
challenging the inclusion of the fine in the final judgment was
a motion pursuant to Ky. R. Crim. P. 8.10 to withdraw guilty
plea and, if necessary, a direct appeal from the denial of the
motion.
1997).
See Kennedy v. Commonwealth, 962 S.W.2d 880 (Ky.App.
Accordingly, we are of the opinion that a CR 60.02
motion is not a proper venue for challenging Bunch’s guilty plea
and the circuit court did not err in denying the CR 60.02
motion.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Chris C. Hodge
Donald M. Heavrin
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky
-3-
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