Tipton v. Commonwealth

376 S.W.2d 290

Opinions

CULLEN, Commissioner.

Appellants, who are confined in the. penitentiary under a judgment of the Clark ■ Circuit Court convicting them of armed robbery, filed motion in the Clark Circuit Court, under RCr 11.42 to , vacate the judgment on the ground that the offense of which they were convicted did not occur in Clark County. Their motion was overruled and they have appealed from the overruling order.

The substance of appellants’ claim for relief was that there was an insufficiency of proof of venue at their trial. In Sharp v. Waddill, Ky., 371 S.W.2d 14, we have held that insufficiency of proof of venue is not a ground for collateral attack of a judgment.

RCr 11.42 does not authorize relief from a judgment of conviction for mere errors of the trial court. In order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of a statute as to make the judgment void and therefore subject to collateral attack. Though designed to furnish a new and more satisfactory form of remedy than habeas corpus, the rule does not establish any new grounds of remedy (with the possible exception of the imposition of a sentence in excess of that authorized by law).

The basis of appellants’ motion is not one on which a judgment could have been collaterally attacked. Accordingly, the court properly overruled the motion.

The order is affirmed.

MOREMEN, J., concurring in the result.