Jt Higgins v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: July 18, 2025
• Docket: 2023-CA-1327
• Status: Published

Opinion

RENDERED: JULY 18, 2025; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1327-MR

JT HIGGINS APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 16-CR-00060

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, EASTON, AND L. JONES, JUDGES.

CALDWELL, JUDGE: JT Higgins (“Higgins”) appeals from the Henderson

Circuit Court’s denial of his CR1 60.02 motion to vacate, correct, or amend

sentence. After entering a guilty plea and being sentenced to seven years’

imprisonment, Higgins filed a motion for shock probation and was placed on

probation for seven years via agreed order. After he had served over five of those

1 Kentucky Rules of Civil Procedure. seven probationary years, his probation was revoked. Higgins contends the

Henderson Circuit Court lacked jurisdiction to revoke his probation, citing KRS2

533.020(4) which states the period of probation “shall not exceed five (5) years, or

the time necessary to complete restitution, whichever is longer, upon conviction of

a felony[.]” Despite the Commonwealth’s argument (Higgins waived the statutory

five-year limit on probation by agreeing to a seven-year period of probation), we

conclude the Henderson Circuit Court lacked authority to impose or enforce the

seven-year probationary period and abused its discretion in denying Higgins’ CR

60.02 motion. We reverse the denial of Higgins’ CR 60.02 motion and remand

with directions to vacate the revocation of Higgins’ probation.

FACTS

Higgins has admitted to being involved in a December 2015 robbery

in Henderson County. He was indicted for complicity to first-degree robbery. He

was represented by counsel in the proceeding on the robbery charges before the

Henderson Circuit Court (“the trial court”).3

2 Kentucky Revised Statutes. 3 The appellant brief alludes to Higgins’ having also been involved in another robbery in Hopkins County which took place the same day as the Henderson County robbery. The appellant brief states Higgins also received shock probation from the Hopkins Circuit Court in October 2016. However, this appeal is only from the Henderson Circuit Court’s denial of Higgins’ CR 60.02 motion and not from any court action in Hopkins County. Moreover, the record on appeal for this case does not contain the complete court record for any court action in Hopkins County.

-2- Higgins accepted the Commonwealth’s offer to amend the charges to

complicity to second-degree robbery upon a plea of guilty. The trial court found

his guilty plea to be voluntary, adjudged him guilty of complicity to second-degree

robbery, and sentenced him to seven years’ imprisonment in August 2016.

Higgins did not appeal from the judgment of conviction and sentence.

In October 2016, Higgins filed a motion for shock probation. The

trial court granted his motion and entered an order suspending further execution of

sentence. This order placed Higgins on probation for seven years, commencing on

the date of the order’s entry. Both the Commonwealth’s attorney and Higgins’

counsel signed this order with a notation they had seen and agreed to the order.

Higgins did not appeal from this order (“the shock probation order”) which placed

him on probation for seven years.

In March 2022, Higgins’ probation officer filed an affidavit with the

trial court stating Higgins had recently been arrested in Hopkins County and

charged with offenses including careless driving, trafficking in marijuana and

methamphetamine, and possession of drug paraphernalia. The probation officer

requested Higgins’ probation be revoked due to his committing another offense.

Higgins was represented by counsel in the probation revocation proceedings before

the trial court.

-3- Following a hearing, the trial court found Higgins violated his

probation by committing a new offense. It revoked his probation in an order

entered September 1, 2022. Higgins did not appeal from the revocation.

In October 2023, Higgins filed a pro se CR 60.02 motion to vacate,

correct, or amend his sentence.

Higgins argued the trial court had lost jurisdiction prior to its revoking

his shock probation in the latter part of 2022. He asserted shock probation

(imposed pursuant to KRS 439.265) is a type of probation subject to the

requirements of KRS 533.020(4). He pointed out KRS 533.020(4) provides a court

may impose a period of probation – generally not to exceed five years4 – upon a

felony conviction. Higgins contended the seven years’ probation he received was

thus an illegal sentence and the trial court’s judgment was void. He asserted the

trial court could not validly revoke his probation more than five years after placing

him on probation.

The trial court entered an order denying Higgins’ CR 60.02 motion in

October 2023. The trial court took note of precedent indicating a defendant could

waive the statutory maximum period of probation in its order. See Commonwealth

4 KRS 533.020(4) states: “Such period [of probation], with extensions thereof, shall not exceed five (5) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a felony[.]”) (emphasis added). No issues about restitution were raised by the parties to the trial court or to this Court. Moreover, no extension of the initially imposed probation period was ever sought or granted based on our review of the record.

-4- v. Wright, 415 S.W.3d 606, 611 n.3 (Ky. 2013) (citing Commonwealth v. Griffin,

942 S.W.2d 289, 291 (Ky. 1997)) (“[E]ven without a finding of necessity, a

probationer may knowingly and voluntarily agree to an extension of probation

beyond five years, for example to avoid revocation of probation.”). The trial court

determined that Higgins waived the statutory maximum period of probation by

agreeing to a probationary period exceeding the statutory limit.5 Thus, the trial

court concluded Higgins was not entitled to extraordinary relief under CR 60.02.

Higgins filed a timely appeal from the denial of his CR 60.02 motion

and the trial court granted his motion for appointed counsel on appeal. Higgins

argues on appeal that the trial court illegally sentenced him to a seven-year term of

shock probation and abused its discretion in denying his CR 60.02 motion.6

In response, the Commonwealth contends the trial court properly

denied the CR 60.02 motion because Higgins agreed to the seven-year term of

probation. It also asserts Higgins failed to properly preserve the alleged error in

being placed on seven years’ probation because he did not appeal from the shock

probation order or the order revoking his shock probation and he did not file a

5 The trial court’s order denying CR 60.02 relief did not discuss whether there was any difference between an agreement to an initial imposition of probation exceeding five years and an agreement to waive the statutory five-year limit on probation by requesting an extension of a probationary period initially set within the statutory limit. 6 Higgins also requested an evidentiary hearing and appointment of counsel in the trial court CR 60.02 proceedings. The trial court denied both these requests. However, Higgins did not allege any error in the trial court’s denial of these two requests in his briefs to this Court.

-5- RCr7 11.42 motion prior to seeking relief under CR 60.02. Moreover, the

Commonwealth contends Higgins failed to file the CR 60.02 motion within a

reasonable time.

ANALYSIS

Preservation and Procedural Concerns

Before we address the merits of the trial court’s decision, we must

consider the Commonwealth’s assertion that the alleged illegality of the seven-year

term of probation was not properly preserved for review – based on the lack of

timely appeal from the orders imposing or revoking probation and the lack of prior

RCr 11.42 motion.

Certainly, “CR. 60.02 is not intended to provide relief for grounds that

could be attacked through direct appeals or collateral motions such as grounds

under RCr 11.42.” Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017)

(emphasis in original). Generally, one must first raise all errors reasonably

discoverable by oneself or one’s attorney through direct appeal and then raise all

other reasonably apparent errors which could be presented through an RCr 11.42

motion before seeking relief pursuant to CR 60.02. Gross v. Commonwealth, 648

S.W.2d 853, 856 (Ky. 1983).

7 Kentucky Rules of Criminal Procedure.

-6- However, failure to raise an alleged error through direct appeal or RCr

11.42 motion does not necessarily mean the alleged error was never preserved by

being raised to the trial court. Despite the lack of direct appeal or RCr 11.42

motion by Higgins, Higgins raised the same issues to the trial court via his CR

60.02 motion that he raised in this appeal. Thus, these issues were preserved for

appeal since they were raised to the trial court. See Gasaway v. Commonwealth,

671 S.W.3d 298, 311-12 (Ky. 2023) (noting basic function of preservation

requirement is to make sure that the issue or allegation of error has been raised to

the trial court, so the trial court has an opportunity to consider the issue).

In sum, we are satisfied Higgins properly preserved the allegations of

error advanced in his appellate briefs through raising them to the trial court.

Moreover, a failure to allege error through direct appeal or RCr 11.42

motion does not always mean that this Court must decline to consider the

allegations of error presented in the CR 60.02 motion. For example, after noting

Meece’s prior direct appeal and his then-pending RCr 11.42 motion (filed after

Meece’s CR 60.02 motion), our Supreme Court reached the merits of issues raised

by Meece in his CR 60.02 motion despite the fact that: “Meece has litigated, is

currently litigating, or should have litigated all of these claims for relief.” Meece,

529 S.W.3d at 286.

-7- Furthermore, we cannot accept the Commonwealth’s argument that

consideration of Higgins’ CR 60.02 motion was precluded on procedural grounds –

namely, Higgins’ not having filed an RCr 11.42 motion prior to filing his CR 60.02

motion. See Gross, 648 S.W.2d at 856. Despite the Commonwealth’s suggestion

that it was improper for Higgins to file a CR 60.02 motion before filing a RCr

11.42 motion, this Court has previously indicated a CR 60.02 motion is more

appropriate for challenging revocation of probation, which had already expired,

than a RCr 11.42 motion. See generally Grundy v. Commonwealth, 400 S.W.3d

752, 754-55 (Ky. App. 2013) (reversing denial of CR 60.02 motion which argued

the revocation of probation after the probationary period expired was a void

judgment and noting ineffective assistance of counsel had not been alleged “nor

does the issue of a void judgment involve RCr 11.42”).

Moreover, our Supreme Court has made clear that sentencing issues

may be raised and must be fixed at any time whether raised by direct appeal, RCr

11.42, CR 60.02, or other means:

The appellate court will automatically treat an unpreserved sentencing issue as though it was preserved for appellate review. Furthermore, because the trial court and appellate court have inherent authority to correct an unlawful sentence at any time, a defendant may raise a sentencing issue through any of the following relief mechanisms: direct appeal, with the standard of review being abuse of discretion even when the sentencing issue is not preserved; RCr 11.42; CR 60.02; or a writ of

-8- habeas corpus.

Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023) (footnotes omitted).

While the Commonwealth suggests that a term of probation is not a sentence

(which we address later), Higgins clearly argued to the trial court and to this Court

that the trial court imposed an illegal sentence by placing him on probation for

seven years – despite KRS 533.020(4)’s five-year limit for probation on a felony

conviction. Thus, as Higgins argued the seven-year term of probation was an

illegal sentence, his failure to present this issue through other means does not

preclude the trial court or this Court from considering the issue.

So, we review the trial court’s denial of his CR 60.02 motion under

the generally applicable standard of review.

Standard of Review

We review the denial of the CR 60.02 motion for abuse of discretion.

Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996).

Trial Court Abused Its Discretion in Denying CR 60.02 Motion

Higgins contends the trial court lost jurisdiction to revoke probation

five years after he was placed on probation. He argues this case is akin to Grundy,

400 S.W.3d 752, in which this Court held the circuit court lacked jurisdiction to

revoke probation one day after the probationary period expired, rendering the order

-9- revoking Grundy’s probation void. Id. at 754. However, the two cases have some

factual differences which merit consideration.

Grundy was initially placed on probation for five years pursuant to

the judgment of conviction and sentence with no indication he requested an

extension of the probationary period. Id. at 753. In contrast, Higgins was initially

sentenced to seven years’ imprisonment upon a plea agreement and filed a motion

for shock probation, which was resolved by an agreed order placing him on

probation for seven years. And the trial court ruled upon the Commonwealth’s

revocation motion within the seven-year probationary period imposed on Higgins

via agreed order – though not within five years of placing Higgins on probation.

Nonetheless, the seven-year term of probation imposed on Higgins via

agreed order clearly exceeds the limitation on probationary period set forth in KRS

533.020(4): “Such period [of probation], with extensions thereof, shall not exceed

five (5) years, or the time necessary to complete restitution, whichever is longer,

upon conviction of a felony[.]” Moreover, the time limit set forth in KRS

533.020(4) applies to terms of shock probation since KRS 439.265(1) provides a

trial court may suspend a defendant’s sentence of imprisonment after 30 to 180

days of incarceration upon his/her motion subject to the provisions of KRS

Chapters 500 to 534 as well as KRS Chapter 439. And as Higgins further points

out, binding precedent from our Supreme Court indicates a court violates the

-10- separation of powers doctrine by imposing probationary periods exceeding the

time limits set forth by statute. See Miller v. Commonwealth, 391 S.W.3d 801, 806

(Ky. 2013): “The legislative branch gets to set the maximum length of all

probationary periods, if it so chooses. It has done so. The judicial branch gets to

set individual probationary periods, though it is bound by the limits set by the

legislature.”

Our Supreme Court noted the trial court in Miller had initially placed

the defendant on probation for two years – in compliance with KRS 533.020(4)’s

time limit for misdemeanors. 391 S.W.3d at 803. However, the trial court later

extended the probationary time limit over Miller’s objection. Id. at 806. While our

Supreme Court noted Miller had not agreed to the extension of his probation, it

also recognized that a trial court might validly extend probation beyond the

statutory time limit under different circumstances if the trial court acts within the

original probationary period and the defendant knowingly and voluntarily waives

the statutory time limit by requesting an extension of probation. Id. (citing Griffin,

942 S.W.2d at 291). Here, however, there simply was no extension of Higgins’

probation – at his own request or over his objection. Instead, the trial court

initially imposed a probationary period which exceeded KRS 533.020(4)’s five-

year probation limit for a felony conviction in the shock probation order.

The Commonwealth argues Higgins waived the statutory time limit in

-11- KRS 533.020(4) by agreeing to the seven-year term of probation. The

Commonwealth correctly points out the shock probation order placing Higgins on

probation for seven years was an agreed order, despite Higgins’ assertion in his

appellant brief that his CR 60.02 motion shows he did not agree to receiving an

additional two years’ probation over the statutory five-year limit.8

As the Commonwealth points out, a defendant can knowingly and

voluntarily waive the five-year limit on probation to avoid revocation and

imprisonment, citing Griffin, 942 S.W.2d at 291. However, as Higgins points out

in the reply brief, Griffin involved different facts – in which the defendant violated

his probation within the initially imposed five-year probationary period and then

requested an extension on probation to avoid revocation and imprisonment. Id.

In contrast, Higgins never requested an extension of his probation –

though he was initially placed on seven years’ probation upon an agreed order

resolving his motion for shock probation. Moreover, the probation violation at

issue here9 did not occur until more than five years had elapsed since Higgins was

placed on probation.

8 The agreed order placing Higgins on probation for seven years was not signed by Higgins himself – probably because he was represented by counsel. However, Higgins’ attorney signed this order. 9 Based on our review of the written record, Higgins’ probation officer filed an affidavit alleging Higgins violated the terms of his probation by failing to complete substance abuse treatment in August 2017. In September 2017, the trial court entered an order noting Higgins had admitted to violating his probation order by failing to complete treatment. The trial court found Higgins had

-12- Unlike Higgins, Griffin was originally granted probation for a period

of five years subject to conditions including paying restitution. Four years later,

Griffin requested a five-year extension of probation to make required restitution

payments in response to the Commonwealth’s motion to revoke. The trial court

granted this requested five-year extension on probation. During the requested five-

year probation extension but about seven years after the original conviction, the

Commonwealth again moved to revoke probation for failure to pay restitution.

Several months after the trial court revoked probation, Griffin filed a

pro se RCr 11.42 motion claiming the trial court lost jurisdiction to revoke

probation five years after he was placed on probation. The trial court denied the

RCr 11.42 motion and Griffin appealed. The Court of Appeals reversed, agreeing

with Griffin that the trial court lost jurisdiction to revoke Griffin’s probation upon

expiration of the five-year period set forth in KRS 533.020(4). 942 S.W.2d at 290.

violated his probation, but it declined to revoke probation. Instead, it found him in contempt for violating probation and stated he could purge himself of contempt by remaining incarcerated until he could be reassessed and enter any recommended long-term treatment program. Evidently, Higgins must have purged himself of contempt as nothing further appears in the written record until the 2022 probation revocation proceedings commenced.

Neither party’s briefs substantively discuss the 2017 probation violation proceedings in their legal arguments or make any arguments about tolling the expiration date for probation. See generally KRS 533.040(2); Commonwealth v. Dulin, 427 S.W.3d 170 (Ky. 2014). Moreover, given the apparently quick resolution of the 2017 probation violation proceedings, we discern no reason to assume that significant tolling periods could justify the trial court’s revocation of probation nearly six years after Higgins was placed on probation.

-13- Upon discretionary review, our Supreme Court reversed and

reinstated the trial court’s denial of Griffin’s RCr 11.42 motion. It held subject

matter jurisdiction (jurisdiction over the type of case) had never been lost and the

trial court retained jurisdiction over the particular case by extending the

probationary period on Griffin’s request. It further stated the purpose of KRS

533.020(4) (protecting the convicted defendant from an indefinite duration of

probation) was not defeated by allowing Griffin to knowingly and voluntarily

waive the statutory five-year limit by obtaining, at Griffin’s request, an extension

on probation to avoid revocation and imprisonment. Id. at 291.

Unlike Griffin, Higgins did not seek an extension of his probation so

he could make further restitution payments. Instead, a seven-year probation period

was initially imposed via the agreed order resolving Higgins’ shock probation

motion. Higgins asserts here: “an illegal sentence was imposed from the

beginning.”

Higgins contends he could not validly agree to a seven-year

probationary period and courts must not enforce such an agreement to a

probationary period exceeding the limit set forth in KRS 533.020(4).

Noting he never requested an extension of probation as Griffin did,

Higgins asserts courts must not enforce plea agreements to illegal sentences, citing

McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010). Moreover, he

-14- argues a failure to raise the illegality of the sentence to the trial court does not

preclude an appellate court from granting relief from such an illegal sentence,

citing Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018). Indeed, Phon

states: “an illegal sentence cannot stand uncorrected” even if the error is

unpreserved and it “did not matter” that the defendant agreed to the illegal

sentence. Id. (Notably, however, McClanahan and Phon concerned challenges to

the legality of sentences of imprisonment rather than probation.)

Contrary to Higgins’ argument, the Commonwealth suggests the

seven-year term of probation was not an illegal sentence based on authority stating

that probation, standing alone, is not a sentence because probation is not an

authorized penalty provided for in KRS 532.030. See Commonwealth v. Tiryung,

709 S.W.2d 454 (Ky. 1986):

The language of KRS 532.030 is mandatory. Upon conviction a person “shall have his punishment fixed” at death, imprisonment or fine, as may be appropriate depending on the offense committed. On the other hand, KRS 532.040 is permissive. It permits a court to “sentence such person to a period of probation or to a period of conditional discharge as provided” by KRS Chapter 533. It further provides that “[a] sentence to probation or conditional discharge shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with KRS Chapter 533. . . .”

The Court of Appeals concluded, and we agree, that probation standing alone does not function as a sentence because it provides no authorized penalty[.]

-15- Id. at 455. See also Commonwealth v. Moreland, 681 S.W.3d 102, 106 (Ky. 2023).

In Moreland, our Supreme Court considered whether a “split

sentence” of ten years’ imprisonment followed by ten years’ probation entered

pursuant to a plea agreement was an illegal sentence. Id. at 103-04. Our Supreme

Court noted probation standing alone is traditionally not considered a sentence

because it is not an authorized penalty. Id. at 106 (citing Tiryung, 709 S.W.2d at

455). Our Supreme Court noted a sentence of imprisonment must precede

consideration of probation and probation could only be ordered in lieu of

implementation of incarceration. Moreland, 681 S.W.3d. at 106 (citing Jones v.

Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010)). Our Supreme Court further

stated in Moreland:

incarceration upon conviction of a crime cannot occur without a sentence; that is elementary. Functionally then, “is not sentenced to imprisonment” means when implementation of incarceration is not ordered. And since implementation of incarceration was ordered in Moreland’s case, the sentence purporting to probate ten years of that prison sentence is unlawful. KRS 533.020(1). The statutory scheme creates an “either/or” option, not a “both/and” option.

681 S.W.3d at 106.

-16- Perhaps primarily based on its conclusion that split sentences of

imprisonment followed by probation were illegal,10 the Supreme Court determined

the ten-year probation period imposed on Moreland was illegal. Id. at 107. Still, it

also noted the ten years’ probation imposed on Moreland violated KRS 533.020(4).

Moreland, 681 S.W.3d at 106.

Our Supreme Court did not explicitly address in Moreland whether an

initially imposed probationary period exceeding five years by itself amounted to an

illegal sentence – despite noting this violation of KRS 533.020(4) yet also noting

probation standing alone was not traditionally considered a sentence. Id. at 106.

Nonetheless, our Supreme Court indicated an illegal term of probation

was no more enforceable than an illegal term of imprisonment – even if the

defendant had initially agreed to the illegal probation:

Under our Constitution . . . [i]t is error for a trial jury to disregard the sentencing limits established by the legislature, and no less erroneous for a trial judge to do so by the acceptance of a plea agreement that disregards those statutes. The force of McClanahan’s holding is not lessened by the fact that it was dealing with a hammer clause on a term of imprisonment that imposed a sentence of imprisonment beyond the statutory limits, whereas here we only have an illegal probation. It

10 In conclusion, our Supreme Court stated in Moreland: “Probation is the suspension of a sentence of imprisonment, and once a convicted criminal has been ordered to serve any portion of that sentence of imprisonment, a trial court may not simultaneously probate the remainder of that sentence. Probation is only available when the defendant is not sentenced to imprisonment[.]” Id. at 109 (citing KRS 533.020(1)) (internal quotation marks omitted). The court further noted: “This ruling does not apply in cases of shock probation[.]” Moreland, 681 S.W.3d at 110.

-17- applies equally since probation is a statutory grant of authority to the judiciary and probation is merely the suspension of the imposition of a sentence of incarceration.

Id. at 107 (internal quotation marks and citations omitted).

Therefore, though the Commonwealth correctly notes a defendant

may choose to waive nearly all his or her statutory and constitutional rights,

Howard v. Commonwealth, 595 S.W.3d 462, 473 (Ky. 2020),11 Moreland makes

clear courts cannot enforce an illegal probation, even one to which the defendant

has ostensibly agreed. 681 S.W.3d at 107.

In Moreland, our Supreme Court distinguished between challenges to

conditions of probation and the imposition of probation. Noting an illegal sentence

may be challenged at any time, our Supreme Court held one does not have to

immediately challenge the legality of imposing probation. Id. at 106-07. In

contrast, one must immediately challenge any condition of probation due to the

trial court’s statutory authority to impose all reasonable conditions to help the

defendant lead a law-abiding life:

requiring a probationer to challenge a condition of probation at the time it is imposed is consonant with the applicable statute, since the General Assembly 11 The Commonwealth points out that Howard notes a defendant may waive the five-year limit on probation. See 595 S.W.3d at 474 (quoting Commonwealth v. Townsend, 87 S.W.3d 12, 15 (Ky. 2002)). However, probation was not at issue in Howard or in Townsend. In any event, more recent binding precedent from our Supreme Court clearly holds courts cannot validly enforce an illegal probation even though the defendant agreed to the illegal probation. See generally Moreland, 681 S.W.3d 102.

-18- specifically allows trial courts to impose “any other reasonable condition” in addition to those listed in the statute. KRS 533.030(2).

Moreland, 681 S.W.3d at 107.

Though not squarely addressing how the length of an initially imposed

term of probation is different from conditions of probation which must be

immediately challenged, Moreland suggests an initially imposed term of probation

clearly exceeding the plainly stated five-year limit in KRS 533.020(4) could be

considered an illegal sentence.

In any event, even if probation standing alone is not considered a

sentence, there was no “probation standing alone” in this case. Instead, after

having been sentenced to a term of imprisonment and being incarcerated for at

least a couple of months, Higgins’ sentence was suspended, and he was placed on

probation for seven years after filing a motion for shock probation. Even if a term

of probation by itself is not considered a sentence, this seven-year term of

probation imposed after Higgins’ had been sentenced to seven years’ imprisonment

and had served some of that time in prison violated the five-year statutory time

limit set forth by the legislature in KRS 533.020(4).

Probation is inherently statutory in nature and courts must follow the

plain meaning of probation statutes. Moreland, 681 S.W.3d at 105 (citing Conrad

v. Evridge, 315 S.W.3d 313, 316 (Ky. 2010)).

-19- Moreover, the trial court’s initial imposition of a seven-year term of

probation under the facts here – with no request for extension or any indication that

additional time was necessary to complete restitution – constitutes a violation of

separation of powers given the clear violation of KRS 533.020(4)’s plain terms.

See Miller, 391 S.W.3d at 805 (citing Griffin, 942 S.W.2d at 291): “The two-year

limit [for probation for misdemeanors] is an absolute limit, absent some overriding

statute or waiver by the defendant.” Like the two-year limit for misdemeanors, the

five-year limit on probation for felony offenses is absolute, barring some

overriding statute or valid waiver by the defendant (which did not occur here under

these facts).

In sum, since the shock probation order imposed a probationary

period exceeding the five-year limit for a felony conviction in KRS 533.020(4),

this order was void as it imposed an illegal term of probation. See Moreland, 681

S.W.3d at 110 (recognizing order imposing illegal probation was void). Thus, the

trial court abused its discretion in denying Higgins’ CR 60.02 motion since its

enforcement of a void judgment imposing a term of probation exceeding the time

limits in KRS 533.020(4) is “unsupported by sound legal principles.”

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Next, we address the Commonwealth’s contention that the CR 60.02

motion was properly denied because it was not filed within a reasonable time.

-20- We Decline to Affirm Based on Commonwealth’s Assertion that CR 60.02 Motion was Not Filed Within a Reasonable Time

The Commonwealth alternatively argues that the trial court’s denial of

the CR 60.02 motion should be affirmed on independent grounds – i.e., Higgins’

failure, in its view, to file his CR 60.02 motion within a reasonable time. As the

Commonwealth points out, a CR 60.02 motion premised on a void judgment or for

“any other reason of an extraordinary nature justifying relief” must be filed within

a reasonable time. See CR 60.02(e)-(f).

The Commonwealth notes that Higgins filed his CR 60.02 motion to

correct his sentence seven years after entry of the order suspending the original

sentence of imprisonment and granting shock probation. The Commonwealth

argues this was an unreasonable delay, citing Graves v. Commonwealth, 283

S.W.3d 252 (Ky. App. 2009). Graves filed a CR 60.02 motion challenging the

validity of his guilty plea over seven years after he was convicted and sentenced.

Id. at 254. Among other reasons, this Court held the trial court did not abuse its

discretion in denying Graves’ CR 60.02 motion because Graves failed to explain

why it took him seven years to challenge the validity of his guilty plea. Id. at 257.

Higgins does not expressly respond to the Commonwealth’s assertion

he failed to file his CR 60.02 motion within a reasonable time other than arguing

courts can and must fix an illegal sentence at any time in his reply brief. And

while Higgins does not explicitly explain the delay in questioning the legality of

-21- the seven-year term of probation, the record does not clearly indicate the trial court

or Higgins’ prior counsel brought the time limit in KRS 533.020(4) to his attention

during the shock probation or revocation proceedings.

In any event, the trial court did not deny the CR 60.02 motion based

on the motion not being brought within a reasonable time and Higgins’ filing his

60.02 motion just over a year after his probation was revoked does not reflect a

strikingly obvious unreasonable delay in our view. Thus, we decline to affirm the

trial court’s erroneous denial of CR 60.02 relief based on the Commonwealth’s

alternative argument.

Further arguments in the parties’ briefs not discussed herein have been

determined to lack merit or relevancy to our resolving this appeal.

CONCLUSION

For the foregoing reasons, we REVERSE the trial court’s denial of

Higgins’ CR 60.02 motion and REMAND with directions to vacate the revocation

of probation.

JONES, L., JUDGE, CONCURS AND FILES SEPARATE OPINION.

EASTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

JONES, L., JUDGE, CONCURRING: I concur with the result but

write separately to emphasize three points: 1) The circuit court had no authority to

place Higgins on shock probation for more than five years; 2) It was not logical,

-22- and arguably was not even possible, for Higgins to make a direct appeal; and 3)

CR 60.02 was the appropriate means for Higgins to challenge the revocation of his

probation.

It is clear that “granting and revoking probation is not an inherent

power in the courts, but is a power vested in the courts by statute.” Conrad v.

Evridge, 315 S.W.3d 313, 316 (Ky. 2010). KRS 533.020 limits that power to the

imposition of probation for a period of no more than five years:

The period of probation, probation with an alternative sentence, or conditional discharge shall be fixed by the court and at any time may be extended or shortened by duly entered court order or as modified by the Department of Corrections through the application of probation program credits under KRS 439.268. Such period, with extensions thereof, shall not exceed five (5) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a felony nor two (2) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a misdemeanor.

KRS 533.020(4) (emphasis added). Because neither party has claimed the

collection of restitution is an issue in this case, there is no statutory authorization

for the trial court to impose a period of restitution exceeding five years.

All judges, appellate or not, are frequently required to hold the parties

before them to the plain language of the statute; in the absence of a constitutional

challenge, we should hold ourselves to the same standard. This is an issue of

separation of powers. Where the power to grant probation within certain

-23- parameters was bestowed upon the courts by the legislature, the judiciary cannot

expand upon those parameters sua sponte. Nor can we avoid the limitations

imposed by KRS 533.020(4) by equating the period or length of probation with a

mere condition of probation which, pursuant to KRS 533.030(1) “shall be such as

the [trial] court, in its discretion, deems reasonably necessary to ensure that the

defendant will lead a law-abiding life[.]” Once more, a plain reading of the two

statutes prevents such equivocation.

Nor does it matter that counsel for Higgins agreed to the extended

period of probation, though this may raise some concerns that Higgins (or a future

defendant) would be permitted to “beat the system” by agreeing to an initial

lengthy term of probation to secure his or her release from incarceration only to

later challenge that extended probation period as unlawful. This same concern of

gaming the system was raised in Conrad. However, our Supreme Court ultimately

determined “given that probation is a statutory creature, this Court is bound by the

plain meaning of the probation statutes.” Conrad, 315 S.W.3d at 317. In

accordance with Conrad, pursuant to KRS 533.020(4), Higgins’ probationary

period was discharged as a matter of law five years from the date he was released

on shock probation. See Commonwealth v. Dulin, 427 S.W.3d 170, 177 (Ky.

2014) (footnote omitted) (“If a probationer has been discharged from probation by

operation of law pursuant to KRS 533.020(4), and the circuit court is therefore

-24- without jurisdiction to have revoked his probation and yet does so nevertheless,

resulting in the former probationer being imprisoned in violation of Conrad, it

would appear that in that case he would be being held in incarceration under a void

judgment.”).

While no one alleges Higgins actively bargained for a seven-year

period of probation, it is undisputed that, through counsel, he provided his

agreement to the court’s order. However, for this reason, there was no avenue of

direct appeal open to Higgins. A party must be aggrieved by a judgment in order

to appeal from it. Miller v. Miller, 335 S.W.2d 884, 886 (Ky. 1960). Higgins

sought shock probation, he received shock probation, and he agreed to shock

probation. He was arguably not aggrieved. Furthermore, had Higgins filed a

direct appeal, if he even knew the period of shock probation was unlawful,12 the

12 See Gross v. Commonwealth, No. 2011-CA-002196-MR, 2013 WL 3329080 (Ky. App. Jun. 28, 2013); and Beckman v. Commonwealth, No. 2013-CA-00214-MR, 2014 WL 6881109 (Ky. App. Dec. 5, 2014), discretionary review denied (Aug. 12, 2015). In Gross, the defendant was initially probated for five years in October of 2004, was revoked in April of 2007, and was released again on shock probation for five years in July of 2007. Gross, 2013 WL 3329080, at *1. Gross absconded from supervision in September of 2011, a warrant was issued for her arrest, and her shock probation was revoked in October of 2011. Id. Gross appealed, alleging her probation had legally expired in January of 2010. Id. Similarly, Beckman was probated for five years in October 2006, revoked in March of 2008, and released again on shock probation for five years in July of 2008. Beckman, 2014 WL 6881109, at *2. When the Commonwealth moved to revoke Beckman’s shock probation in May of 2012, Beckman argued that his probationary period had expired in October of 2011. Id. In Gross, the Commonwealth argued that a period of shock probation was separate from a period of probation, and, alternatively, that Gross, pursuant to Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky. 1997), had agreed to the extended probation period by accepting her release on shock probation. Gross, 2013 WL 3329080, at *2. The Gross Court applied the probation limits of KRS 533.020(4) to shock probation and distinguished Griffin, noting that Griffin had “unequivocally requested that the court extend

-25- remedy would have been for the appellate court to vacate the unlawful order of

probation and Higgins would have been returned to custody. Thereby Higgins

would have been penalized for pointing out the unlawful period of probation. This

seems an unfair requirement to demand of a criminal defendant.

Therefore, CR 60.02 was the appropriate avenue for Higgins to seek

relief. Our Supreme Court stated as much in Commonwealth v. Dulin, 427 S.W.3d

170 (Ky. 2014). In Dulin, a defendant’s twenty-year prison sentence was probated

for a period of five years. Id. at 172. Three times Dulin was brought back before

the circuit court for revocation. Id. at 172-73. Twice the circuit court sentenced

him to serve 120 days in jail in lieu of revocation “as a condition of continuing on

probation.” Id. at 172. The third time, Dulin’s probation was revoked. Id. at 173.

Dulin had been granted probation on April 23, 2003, and, though no warrant had

been issued for probation violation, Dulin’s third revocation hearing was scheduled

on May 8, 2008, over five years from the date probation was granted. Id. Dulin

did not appeal the revocation order or take any action for relief for more than two

probation an additional five years in lieu of revoking probation. . . .” Id. Consistently, the Beckman Court concluded: “We believe Gross resolved this issue and similarly conclude that the circuit court was without jurisdiction to revoke. In addition, the record does not support a conclusion that Beckman knowingly and voluntarily waived the statutory maximum five-year probation term. If the Commonwealth and a defendant wish to extend the probation term beyond the five-year limit, the record must contain an express waiver by the defendant.” Beckman, 2014 WL 6881109, at *2. The record here contains no such express waiver from Higgins, nor was Higgins negotiating new terms of probation in lieu of or following a motion to revoke his existing probation for non-compliance.

-26- years. Id. Though the Supreme Court upheld the revocation of Dulin’s probation

(holding that under the plain language of KRS 533.040(2) his two periods of

incarceration had tolled the running of his probationary period), the Court found

Dulin had properly sought relief under CR 60.02. Dulin, 427 S.W.3d at 177.

Further, our Supreme Court indicated that, had it not been for the tolling of Dulin’s

probationary period, the trial court would have lost jurisdiction to revoke his

probation five years from the date probation was granted:

If a probationer has been discharged from probation by operation of law pursuant to KRS 533.020(4), and the circuit court is therefore without jurisdiction to have revoked his probation and yet does so nevertheless, resulting in the former probationer being imprisoned in violation of Conrad, it would appear that in that case he would be being held in incarceration under a void judgment. In such cases, absent an alternative means of obtaining relief, the incarcerated former probationer being held under a void judgment may obtain relief pursuant to CR 60.02(e). Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607 (Ky. App. 1995) (citing Bertelsman and Philipps, Kentucky Practice, Civil Rule 60.02, Vol. 7, p. 396 (4th ed. 1984)) (a void judgment is not entitled to any respect or deference by courts, and is a legal nullity, and a court has no discretion in determining whether it should be set aside).

Id. at 177 (footnote omitted).

Much ado is given to whether Higgins was too late to seek relief

under CR 60.02 by serving a year of his revoked sentence before contesting the

revocation. Pursuant to the rule, Higgins was required to file his motion for relief

-27- “within a reasonable time.” CR. 60.02. However, if the circuit court had no

authority to revoke Higgins’ probation after the expiration of five-years, the

judgment revoking his sentence is void. As our Supreme Court indicated in Dulin,

this Court has no discretion to avoid setting aside a void judgment. Id. Nor is

there a time limit on a request to set aside a void judgment “since a void judgment

does not acquire validity with the passage of time.” Rogers Group, Inc. v.

Masterson, 175 S.W.3d 630, 635 (Ky. App. 2005) (in which parties did not move

for relief under CR 60.02 until the passing of three years and the resolution of two

prior appeals).

Therefore, I concur that the judgment of the Henderson Circuit Court

denying Higgins relief under CR 60.02 should be REVERSED and REMANDED

with directions to vacate the order which revoked Higgins’ probation and

sentenced him to serve his underlying sentence.

EASTON, JUDGE, DISSENTING: Because this case results in a

misapplication of CR 60.02, I respectfully dissent. The circumstances of this case

do not require CR 60.02 relief, and the circuit court did not abuse its discretion in

denying the CR 60.02 motion. Relieving Higgins of his bargain is not equitable,

regardless of the original error in ordering a probation term of seven years.

Higgins’s failure to appeal the revocation of his probation should also bar CR

60.02 relief.

-28- Higgins was charged with complicity in two armed robberies

occurring in two counties on the same day in December 2015. Higgins was the

driver of the car used to transport the robbers to and from the two locations.

Despite the seriousness of the charges against him, Higgins was permitted to plead

guilty to a reduced charge of complicity to a second-degree robbery. He was

sentenced to a seven-year term of imprisonment for this Henderson County case in

August 2016.

Just over two months later, Higgins’s attorney filed a motion for

shock probation. As a result of his reduced charge, Higgins was eligible for

probation.13 The Commonwealth and Higgins’s attorney signed, and the circuit

court entered, an agreed order granting shock probation. This order probated the

seven-year prison sentence for a period of seven years. Higgins did not file an

appeal challenging the initial grant of his probation for a term of seven years.14

13 Had Higgins been convicted of first-degree robbery for his 2015 crimes, he would have been ineligible for probation. KRS 533.010(2); KRS 439.3401(2)(b)10., formerly KRS 439.3401(1)(m) in 2015. In 2024, the General Assembly declared second-degree robbery a violent offense and thus prohibited probation for that crime as well. KRS 439.3401(2)(b)11. A conviction by complicity would not exempt Higgins from classification as a violent offender. Complicity is simply an alternate avenue to establish guilt of the crime charged. Futrell v. Commonwealth, 471 S.W.3d 258, 277 (Ky. 2015). A complicit person stands in the same shoes as the one who commits the crime. Commonwealth v. Combs, 316 S.W.3d 877, 880 (Ky. 2010). 14 Shock probation decisions generally are “not reviewable.” KRS 439.265(2). But an appeal may be taken of a decision to grant shock probation outside of the trial court’s particular-case jurisdiction. See Commonwealth v. Settles, 488 S.W.3d 626 (Ky. App. 2016). While I agree that an appeal by Higgins when the probation was granted would not be logical, it was arguably still incumbent upon him to appeal if he wished to object to the seven-year term. Whatever might be

-29- Before the expiration of the seven-year term of probation, but after

five years on probation, Higgins committed felony level offenses. At a hearing to

decide revocation of the shock probation, Higgins did not raise any question

presented by the expiration of a statutory maximum of five years for probation, and

he did not appeal the revocation of his probation. Over a year later,15 Higgins filed

the CR 60.02 motion now at issue, which the circuit court denied.

I agree that the granting of a seven-year term for shock probation is

not authorized by the controlling statute, KRS 533.020(4), even with agreement of

a defendant. But Higgins repeatedly waived16 this issue of particular-case

jurisdiction and should be estopped from annulling his agreement because he took

advantage of the initial benefit of avoiding incarceration. In the specific and

equitable17 context of CR 60.02, Higgins’s circumstances do not compel the

granting of the extraordinary relief for which CR 60.02 is reserved.

said about an appeal of the shock probation order, the same cannot be said for an appeal of the later revocation decision, which will be addressed further infra. 15 In the circumstances, I agree that the CR 60.02 motion is not barred due to untimeliness. Rather, relief is not justified for other reasons. 16 It is well established that a defendant may waive issues protected as constitutional rights. Sloss v. Commonwealth, 709 S.W.3d 102, 120 (Ky. 2024). Even so, courts should be hesitant to countenance waiver in the context of separation of powers limitations, because not just the defendant is impacted by the disregard of the limitation. For example, such disregard also impacts the allocation of state resources by the General Assembly for probation supervision by the executive branch. 17 CR 60.02 replaced the common law writ of coram nobis which was within the equity jurisdiction of the courts. See Anderson v. Buchanan, 168 S.W.2d 48 (Ky. 1943). The trial court

-30- We must start with KRS 533.020(4) as worded when the Kentucky

Supreme Court decided Commonwealth v. Griffin, 942 S.W.2d 289 (Ky. 1997). At

that time, the statute limited the duration of probation: “Such period, with

extensions thereof, shall not exceed five (5) years upon conviction of a felony.”

In Griffin, a defendant had been granted probation. The nature of his

crime required payment of restitution, which separate statutes18 mandate for those

placed on probation. During the statutorily permitted five years of probation, it

became clear that the defendant would not pay all the restitution owed during the

five-year probation period.

Instead of revoking the probation for the defendant’s failure to make

sufficient effort to pay the restitution, the circuit court extended the probation for

another five years to allow the restitution to be paid and avoid revocation. The

defendant asked for this extension to avoid incarceration. When the defendant

failed again to make required restitution payments, the extended probation was

revoked. Id. at 290-91. He then argued that his agreed-upon term of probation

was illegal.

is required to evaluate the equities between the parties when exercising its discretion on a CR 60.02 motion. See Commonwealth v. Bustamonte, 140 S.W.3d 581 (Ky. App. 2004). 18 See KRS 533.030(2); KRS 532.032.

-31- The Court in Griffin explained that the circuit court did not lose

subject matter jurisdiction by exceeding the statutory probation term limit; it was a

matter of particular-case jurisdiction.19 That defendant asked for and received a

benefit; he avoided incarceration, one of the purposes of probation, by extending

the probation. The Court held that the defendant was estopped to assert the loss of

particular-case jurisdiction resulting from the unauthorized extension of probation.

Id. at 291-92. The year after the Griffin decision, the General Assembly amended

KRS 533.020(4) to adopt the rule announced in the specific circumstances of that

case. The maximum term of probation remained at five years “or the time

necessary to complete restitution, whichever is longer . . . .”

In 2013, the Kentucky Supreme Court confirmed that the General

Assembly decides the length of probation. To order more than five years requires

a court order under the post-Griffin version of the statute and requires a factual

finding of necessity for more time to pay restitution.20 Commonwealth v. Wright,

415 S.W.3d 606, 608 (Ky. 2013). “The legislative branch gets to set the maximum

19 The Kentucky Supreme Court has recently emphasized and explained the rule that statutory provisions frequently impact only particular-case jurisdiction, not subject matter jurisdiction. See Louisville Historic League, Inc. v. Louisville/Jefferson County Metro Government, 709 S.W.3d 213 (Ky. 2025). 20 There is no need to engage in a semantic debate over “extension” or “extending.” The ordinary usage of the word includes an extension during a term or an extension from the beginning of a term. For example, restitution may be so large, that the trial court could find at the beginning of the probation that more than five years will be required and extend the term beyond five years.

-32- length of all probationary periods, if it so chooses. It has done so. The judicial

branch gets to set individual probationary periods, though it is bound by the limits

set by the legislature.” Miller v. Commonwealth, 391 S.W.3d 801, 806 (Ky. 2013).

To order probation beyond the maximum term allowed by statute implicates the

separation of powers boundaries in our state constitution.

Yet these two cases from 2013 both cite Griffin approvingly. The

Court in Miller recognized the right of a defendant to waive the maximum time

limit to avoid incarceration (and the concomitant cost to the state of that

incarceration). Id. at 805-06. In Wright, the Court cited Griffin and summarized:

“It is worth noting that even without a finding of necessity, a probationer may

knowingly and voluntarily agree to an extension of probation beyond five years,

for example to avoid revocation of probation.” 415 S.W.3d at 611 n.3 (emphasis

added). Thus, the law at the time of the extension of probation in the present case

allowed an agreed upon term of more than five years.21

It is at this point essential to identify an important difference in the law

– the difference between an illegal sentence and an unauthorized probation term.

In Stallworth v. Commonwealth, 102 S.W.3d 918 (Ky. 2003), the defendant agreed

21 This is not a case where a five-year term for probation as originally ordered expired and thus the trial court lost jurisdiction to revoke probation. In such a case, a defendant could seek CR 60.02 relief. See Grundy v. Commonwealth, 400 S.W.3d 752 (Ky. App. 2013). See also Conrad v. Evridge, 313 S.W.3d 313 (Ky. 2010). In the present case, Higgins agreed to the term ordered, and the revocation occurred during the agreed-upon term.

-33- to double his sentence from ten years to twenty years as a condition for shock

probation. Citing Griffin, the Court distinguished the case because the waiver to

allow a longer probation term was not an “unauthorized sentence.” Id. at 924. By

contrast, “[a] longer sentence may not supply the quid pro quo for probationary

release.” Id. at 923 (emphasis added).

The law is clear that sentences cannot exceed statutory maximums.

See McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). The issue of an

illegal sentence cannot be waived and thus may be raised by a CR 60.02 motion.

Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). But probation terms

are not a sentence. See Tiryung v. Commonwealth, 709 S.W.2d 454 (Ky. 1986).

Probation has separate considerations as a method to avoid serving a legally

imposed sentence.

Although dicta may suggest otherwise, the recent case of

Commonwealth v. Moreland, 681 S.W.3d 102 (Ky. 2023), does not clearly prohibit

a waiver of the maximum length of probation. In Moreland, the defendant agreed

to a “split” sentence; he would serve ten years and then have a ten-year sentence

probated for a period of ten years with the probation to begin after the service of

the ten-year sentence. The Court in Moreland distinguished Griffin indicating that

the problem was not the length of the probation: “Moreland is not challenging any

-34- conditions of probation. He is challenging the imposition of probation in and of

itself.” Id. at 106.

The Court in Moreland may have intimated a more restrictive view of

a length of probation beyond five years. It noted that the General Assembly had

responded to the Griffin case by adding an exception only for restitution payment.

The Court then said: “we will not . . . declare Griffin to have held something

beyond what its facts and language clearly portend, and was understood by the

legislature.” 681 S.W.3d at 107. Yet, the Moreland decision does not overrule

Griffin nor reject the statements made in the 2013 cases explaining it.

The Commonwealth argues that the Court in Moreland said that its

decision did not apply to shock probation. Id. at 109. But this must be applied in

context. Again, the real problem in Moreland was the illegal split sentence. Shock

probation was excepted from the ruling because it is by its nature a permissible

split sentence. The defendant is sentenced to serve and then, after shock probation

is granted, probation starts for the time left on the sentence. That is a split

sentence, and that was the reason for the comment. This again illustrates the

difference between sentences and probation terms.22

22 The first case to cite Moreland distinguished it by pointing out that a trial court may impose conditions not specifically authorized by statute, although that case did not involve a probation duration more than five years in length. Commonwealth v. Ullman, No. 2022-SC-0293-DG, 2024 WL 1709800, ___ S.W.3d ____ (Ky. Apr. 18, 2024).

-35- Even with Moreland, Griffin remains the law, and, as a general

proposition, Griffin permitted a defendant to agree to a term of probation beyond

five years in duration. But, statutorily, it is an improper practice to order probation

for a term in excess of the clear directive of the legislature on how long probation

may last. It is better policy and practice to honor the General Assembly’s direction

and apply that limitation when evaluating whether release on probation should be

granted in any given case. This will avoid the inevitable arguments later raised

about the propriety of a defendant’s agreement when revocation occurs years after

the defendant has taken full advantage of the benefit of release from incarceration.

If a restriction of Griffin to only the permissible extension for

restitution purposes was intended by Moreland, it is for the Kentucky Supreme

Court to clearly say so in a case in which the ruling could not be argued as dicta

and which would overrule any cases with indications to the contrary. But even

assuming the impropriety of the extended probation term in this case, a separate

procedural reason justifies rejecting Higgins’s plea for relief under CR 60.02.

There is an orderly process for review in Kentucky. First is an appeal,

then a motion under RCr 11.42, and then under CR 60.02, with CR 60.02 relief

reserved for special circumstances justifying the extraordinary relief sought. Gross

v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). If an argument could have

been made through a prior step in this process but was not, it is waived.

-36- Specifically, CR 60.02 may not be used to obtain relief if such relief could have

been obtained by a direct appeal. Meece v. Commonwealth, 529 S.W.3d 281, 285

(Ky. 2017). See also McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.

1997).

Higgins arguably could have questioned the unauthorized nature of

his probation term by direct appeal when the shock probation was granted. Of

course, he would not be expected to appeal that decision since he had been given

the release from incarceration he wanted. More problematic and I believe fatal to

the CR 60.02 motion is the complete failure to raise the question of the circuit

court’s particular-case jurisdiction at the hearing on probation revocation followed

by no appeal to challenge that decision.

Higgins accepted the benefit of an extended probation term and did

not appeal the application of that term when he had an opportunity to do so. As in

Griffin, Higgins is additionally estopped in these circumstances to complain about

the extended term of his probation. The circuit court did not abuse its discretion in

denying relief under CR 60.02. That rule is designed for extraordinary situations

where concepts of equity compel relief from the judgment. That is not present

here. The Henderson Circuit Court should be affirmed.

-37- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

J. Ryan Chailland Russell Coleman Andrea Reed Attorney General of Kentucky Frankfort, Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky

-38-