Carter v. Commonwealth

397 S.W.2d 165, 1965 Ky. LEXIS 76

Opinion

CULLEN, Commissioner.

The trial court overruled, without a hearing, the motion of Frank Carter under RCr 11.42 to vacate the judgment of conviction under which he is serving a 21-year sentence for armed assault with intent to rob. Carter has appealed.

The motion asserted that Carter was charged with armed robbery, for which the only permissible penalties are life imprisonment or death, and that the 21-year sentence therefore is void. However, the record of the trial completely refutes this— it shows that the indictment was for assault with a deadly weapon with intent to rob. That the indictment may have been defective in form would not be a ground for relief under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582.

The trial court properly overruled the motion.

Carter had made a previous motion to set aside the judgment, which had been overruled. He seems to be under the impression that the present appeal embraces that ruling. It does not. However, we have examined the previous motion and we find nothing in it that would have entitled Carter to a hearing.

The judgment is affirmed.