Caudill v. Commonwealth

408 S.W.2d 182

Opinion

WADDILL, Commissioner.

Curtis Caudill, incarcerated in the penal institution at Eddyville, appeals from an order overruling his motion to vacate a conviction for rape.

The record discloses that this is the second attempt by Caudill to obtain post-conviction relief pursuant to RCr 11.42. The grounds he now relies upon were previously presented to and rejected by the circuit court. Neither our Rules of Criminal Procedure nor our case law provides for a second assault to be made upon the judgment of conviction. RCr 11.42; Jennings v. Commonwealth, Ky., 400 S.W.2d 233; Tipton v. Commonwealth, Ky., 398 S.W.2d 493. The proper procedure for Caudill to have followed was the timely filing of an appeal to this court from the original judgment denying the relief he sought under his first RCr 11.42 motion.

The. judgment is affirmed.