Keltee v. Commonwealth

648 S.W.2d 860, 1983 Ky. LEXIS 236

• Court: Kentucky Supreme Court
• Decided: March 30, 1983
• Status: Published

Opinion

OPINION OF THE COURT

The instant case is an appeal from the order of the trial court overruling an RCr 11.42 motion to set aside a previous conviction used as a basis of a subsequent conviction as a persistent felony offender in the first degree.

The Court of Appeals dismissed the appeal without reaching the merits on the basis of Wilson v. Commonwealth, Ky., 403 S.W.2d 710 (1966), because Keltee had completed his sentence long before the RCr 11.42 motion was filed.

On motion for discretionary review, mov-ant asks that this court treat the RCr 11.42 motion as a CR 60.02 motion in the interest of judicial economy. We have elected to do so because the critical issues in this case, were it a 60.02 motion, are the same as those which have been considered and decided in Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983), decided this day.

For the reasons stated in Gross, the order of the trial court and the decision of the Court of Appeals are affirmed.

STEPHENS, C.J., AKER, GANT, LEIB-SON and STEPHENSON, JJ., and TIPTON and WARREN, Special Justices, concur.