COMMONWEALTH OF KENTUCKY v. DAVID TAPP

On January 6, 2012, Tapp entered a guilty plea to several drug offenses.

On February 2, 2012, the court sentenced Tapp to one year in prison, probated

for one year. The court conditioned Tapp's probation, in pertinent part, on

Tapp remaining free of any additional criminal charges.

On January 16, 2013, Tapp's probation officer filed a "Violation of

Supervision Report" indicating that Tapp had received traffic citations in

August 2012 and November 2012 and asking the court to admonish Tapp.

Before the court could act on this report, the probation officer filed a second

report on January 25, 2013, noting that Tapp had again been cited for a traffic

violation. The officer recommended that the court use its discretion in

determining how to sanction Tapp. On January 28, 2013, the

Commonwealth's Attorney filed a motion asking the court: to issue a criminal

summons for Tapp; and to review Tapp's probation for possible revocation.'

The court issued a bench warrant for Tapp's arrest and scheduled Tapp to

appear at its next available docket, which was February 7, 2013. On February

7, 2013, Tapp appeared and requested a revocation hearing for the earliest

possible date, which was February 12, 2013.

At the probation hearing, Tapp argued that the court lacked jurisdiction

to hear the matter because his probationary period expired on February 2,

2013. The. Commonwealth argued that the warrant issued by the court before

February 2, 2013, tolled the expiration period. While Tapp did not dispute that

a pending warrant could toll the probationary period, he argued that the

warrant stopped tolling the probationary period after it was served on January

31, 2013. The court disagreed with Tapp, finding that a warrant remains

pending until there "has been a disposition, following a hearing when required

by statute, of the matter for which the warrant was issued initially." Having

found that it retained jurisdiction, the court held an evidentiary hearing and

revoked Tapp's probation. Tapp appealed to the Court of Appeals, which

The Commonwealth mistakenly referred to diversion rather than probation in its motion, as did the probation report. However, it is undisputed that the court had probated rather than diverted Tapp's sentence.

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reversed, finding that the warrant had expired when served, thus depriving the

court of jurisdiction. We granted the Commonwealth's motion for discretionary

review.

II. STANDARD OF REVIEW.

Because this matter turns on the interpretation of two statutes, our

review is de novo. Hearn v. Commonwealth, 80 S.W.3d 432, 434 (Ky. 2002).

III. ANALYSIS.

The sole issue before us is whether Tapp's probationary period expired

before the trial court held the revocation hearing. Kentucky Revised Statute

(KRS) 533.020(4) provides, in pertinent part, that a period of probation expires

and a defendant "shall be deemed finally discharged [from probation] provided

no warrant issued by the court is pending against him." As noted above, the

trial court determined that a warrant remains pending until there has been a

disposition of the matter for which the warrant was issued. In this case, that

would have been the conclusion of the revocation hearing.

We agree with the trial court that a warrant remains pending beyond the

time of service. However, we disagree that it remains pending until disposition

of the matter for which it was issued.

Pursuant to Kentucky Rule of Criminal Procedure (RCr) 2.06(1), a

warrant has two objectives - arresting the defendant and bringing the

defendant before the court. A warrant remains pending until both objectives

have been met - the defendant has been arrested and the defendant has been

brought before the court. Thus, the warrant in this case remained pending

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until Tapp was brought before the court, which occurred on February 7, 2013.

Once Tapp made that court appearance, his warrant was no longer pending,

and at that point the trial court no longer had the authority to revoke Tapp's

probation, notwithstanding the analysis and proposed procedure we set forth

below. As noted by the trial court, this interpretation of RCr 2.06(1) could, in a

vacuum, lead to absurd results, because, as happened here, a warrant that is

served near the end of the probationary period may well leave the court with no

time to hold a revocation hearing. A number of our trial judges preside over

multiple counties and work diligently to travel and cover dockets in those

counties. Even with the best and most efficient time management on the part

of the trial court, the aforementioned absurd result will inevitably occur.

However, KRS 533.020(4) provides a guard against such absurd results,

stating, in pertinent part, that: "[T]he period of probation . . . shall be fixed by

the court and at any time may be extended or shortened by duly entered court

order." The trial court read KRS 533.020(4) together with KRS 533.050(2) and

concluded that it could not extend the period of Tapp's probation without a

hearing. We understand how the court could read these statutes as it did.

However, we disagree with the court's well-intentioned conclusion that it was

required to hold a hearing before extending Tapp's probationary period for two

reasons.

First, KRS 533.020(4) does not require a court to hold a hearing before

extending the period of probation. Second, although KRS 533.050(2) requires

the court to hold a hearing before modifying the conditions of probation, the

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length of the probationary period is not a statutorily defined condition of

probation. "Conditions" of probation "shall be such as the court, in its

discretion, deems reasonably necessary to insure the defendant will lead a law

abiding life or to assist him to do so." KRS 533.030(1). Such conditions

include the avoidance of certain persons and places, the requirement to obtain

suitable employment and to support dependents, payment of costs and

restitution, submitting to drug and alcohol testing, etc. KRS 533.030(2).

Because the period of probation is not a condition of probation, KRS 533.050(2)

does not mandate a hearing prior to extending it.

However, a court cannot arbitrarily extend the probationary period. A

probationer is entitled to due process protections, one of which is a "duly

entered court order." KRS 533.020(4). In this instance, a duly entered court

order is one supported by probable cause, which requires "facts and

circumstances 'sufficient to warrant a prudent man in believing that the

[probationer] had committed or was committing an offense."' Gerstein v. Pugh,

420 U.S. 103, 111-12 (1975), citing Beck v. Ohio, 379 U.S. 89, 91 (1964).

Furthermore, because such an extension is likely to occur without a hearing,

due process demands that any extension be of limited duration. Therefore, the

trial court may only extend the period of probation without a hearing until its

next available criminal docket or as soon as practical thereafter.

Here, Tapp's probation was conditioned upon his remaining free of

criminal charges. Tapp's probation and parole officer reported to the court that

Tapp had been charged three times with driving on a suspended or revoked

license. Those reports provided sufficient probable cause to support an

extension of Tapp's probationary period until the court could hold a revocation

hearing. Thus, if the trial court had extended Tapp's probationary period at his

first post-arrest appearance on February 7, 2013, it would have retained

jurisdiction to revoke his probation at the February 12, 2013 hearing.

However, because the trial court understandably did not extend Tapp's

probationary period at his first post-arrest appearance, the court lost that

jurisdiction.