Abraham v. Commonwealth

565 S.W.2d 152, 1977 Ky. App. LEXIS 910
CourtCourt of Appeals of Kentucky
DecidedOctober 14, 1977
StatusPublished
Cited by8 cases

This text of 565 S.W.2d 152 (Abraham v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Opinion

PARK, Judge.

Randy E. Abraham appeals from an order of the Breathitt Circuit Court overruling his motion to reduce bond on three indictments for theft by unlawful taking (KRS 514.030). This appeal presents important questions of procedure and substance relating to the 1976 Bail Bond Reform Act. Because of the exigencies of time, the mandate was issued September 23, 1977, pursuant to a memorandum opinion, with the understanding that the reasons for the decision would be set forth in a full opinion.

[154]*154On August 18,1977, the Breathitt County Grand Jury returned three indictments against Abraham charging him with the crime of theft by unlawful taking of property belonging to W. R. Walters, the property being worth more than $100.00. Indictment No. 1995 charges Abraham with the theft of two truck tires on May 15, 1977. Indictment No. 1996 charges him with the theft of a water pump on May 7, 1977. The third indictment (No. 1997) charges Abraham with the theft of seven heavy equipment batteries on April 15, 1977. The circuit judge fixed bond on each indictment at $25,000.00.

Following his arrest on August 24, 1977, Abraham filed a motion to reduce the amount of the bond on the three charges. The trial judge overruled the motion by order entered September 13, 1977. This order recited that it was a final order and that the court’s ruling would be the same on a writ of habeas corpus based upon the same record. On September 15,1977, Abraham filed a notice of appeal from the order of September 13, 1977, overruling his motion to reduce bond.

MAY THERE BE A DIRECT APPEAL FROM AN ORDER OVERRULING A MOTION TO REDUCE BAIL?

Abraham’s counsel acknowledges that the writ of habeas corpus has been the recognized method of reviewing an order denying or refusing to reduce the amount of bail in a criminal proceeding. Young v. Russell, Ky., 332 S.W.2d 629 (1960); Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944). However Abraham’s counsel advances a number of reasons why the writ of habeas corpus does not provide an adequate vehicle for reviewing the action of a circuit court overruling a motion to reduce bond.

A writ of habeas corpus may be issued by any circuit judge in the state (KRS 419.020), but the writ must be returned before the circuit judge of the county in which the person is being detained (KRS 419.030). Consequently, if Abraham had filed a petition for writ of habeas corpus, the merits of the writ would have been heard by the same judge who had previously overruled his motion to reduce the amount of bond. By the order of September 13,1977, the circuit judge made it clear that there would be no change in his ruling if the same issue were presented by a writ of habeas corpus. To require Abraham to file a writ of habeas corpus would be to require him to do a useless and futile act which could only accomplish delay.

Furthermore, the writ of habeas corpus involves several practical difficulties in bail cases. The respondent is usually the jailer, a person totally disinterested in the merits of the matter. The writ of habeas corpus constitutes a separate proceeding. When an appeal is taken from the judgment on a writ of habeas corpus, there is always the problem of including the record in the original proceeding which gave rise to the writ.

In Kentucky, an order overruling a motion to reduce bond has not been considered to be a final judgment. Hence, such orders have not been deemed to be appealable. See the 1962 Comment to Rule 4.14 of the Rules of Criminal Procedure. However, a different result was reached when the Supreme Court of the United States considered the question in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Under 28 U.S.C. § 1291, the federal courts of appeals generally have jurisdiction of appeals from “all final decisions” of the federal district courts. In holding that appeal rather than habeas corpus was the appropriate remedy for reviewing an order refusing to reduce bail, the Supreme Court stated:

The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners’ motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards ... As there is no discretion to refuse to reduce excessive bail, the order denying the motion to [155]*155reduce bail is appealable as a “final decision” of the District Court under 28 U.S.C. (Supp. IV) § 1291, 28 U.S.C.A. § 1291. Cohen v. Beneficial Industrial Loan Corp., 1949, 837 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528. In this case, however, petitioners did not take an appeal from the order of the District Court denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, 28 U.S.C. (Supp. IV) § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3), the District Court should withhold relief in this collateral habeas corpus action where an adequate remedy available in the criminal proceeding has not been exhausted. Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.

342 U.S. at 6-7, 72 S.Ct. at 4. In his concurring opinion, Justice Jackson pointed out:

. But an order fixing bail can be reviewed without halting the main trial-— its issues are entirely independent of the issues to be tried — and unless it can be reviewed before sentence, it never can be reviewed at all. The relation of an order fixing bail to final judgment in a criminal case is analogous to an order determining the right to security in a civil proceeding, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, or other interlocutory orders reviewable under 28 U.S.C. § 1292, 28 U.S.C.A. § 1292. I would hold, therefor, that such orders are appealable.

342 U.S. at 12, 72 S.Ct. at 7. We believe that the decision of the Supreme Court holding such orders appealable is sound, and we adopt it.

A similar problem was considered by this state’s highest court in Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975).

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Bluebook (online)
565 S.W.2d 152, 1977 Ky. App. LEXIS 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abraham-v-commonwealth-kyctapp-1977.