Hamm v. Commonwealth

Court of Appeals of Kentucky

Hamm v. Commonwealth

407 S.W.2d 138, 1966 Ky. LEXIS 146

DecidedOctober 14, 1966

StatusPublished

This text of 407 S.W.2d 138 (Hamm 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.

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Hamm v. Commonwealth, 407 S.W.2d 138, 1966 Ky. LEXIS 146 (Ky. Ct. App. 1966).

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Opinion

CULLEN, Commissioner.

The appeal is from an order overruling, without a hearing, a motion by appellant under RCr 11.42 to vacate a judgment of October 1956 under which he was given a life sentence as an habitual criminal.

The sole ground of attack on the judgment is that the procedure under which the jury was given evidence of the prior convictions of the defendant before it made its determination of guilt or innocence of the current offense charged, and even before any evidence was offered on the current offense (which procedure is permitted under the Habitual Criminal Act, KRS 431.-190), violated the defendant’s right to a fair trial and denied him due process. Under our decisions in Jones v. Commonwealth, Ky., 401 S.W.2d 68, and Wilson v. Commonwealth, Ky., 403 S.W.2d 705, this ground is not sustainable.

Since there was no issue of fact and since the ground stated in the motion was not suf[139]*139ficient to invalidate the judgment, the mov-ant was not entitled to a hearing or to counsel.

The judgment is affirmed.

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CULLEN, Commissioner.

The appeal is from an order overruling, without a hearing, a motion by appellant under RCr 11.42 to vacate a judgment of October 1956 under which he was given a life sentence as an habitual criminal.

The sole ground of attack on the judgment is that the procedure under which the jury was given evidence of the prior convictions of the defendant before it made its determination of guilt or innocence of the current offense charged, and even before any evidence was offered on the current offense (which procedure is permitted under the Habitual Criminal Act, KRS 431.-190), violated the defendant’s right to a fair trial and denied him due process. Under our decisions in Jones v. Commonwealth, Ky., 401 S.W.2d 68, and Wilson v. Commonwealth, Ky., 403 S.W.2d 705, this ground is not sustainable.

Since there was no issue of fact and since the ground stated in the motion was not suf[139]*139ficient to invalidate the judgment, the mov-ant was not entitled to a hearing or to counsel.

The judgment is affirmed.

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407 S.W.2d 138, 1966 Ky. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamm-v-commonwealth-kyctapp-1966.

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