The convoluted path of a possible appeal from Judge Melchers ruling.

  By Stan Billingsley, Senior Editor, LawReader.com .
                    

    The Commonwealth does not have the right to file an appeal of the interlocutory ruling of Judge Melcher holding the prosecution of Gov. Fletcher in abeyance pending his impeachment or removal from office.
 

See: Tipton v. Commonwealth of Kentucky, 770 S.W.2d 239 (Ky.App. 03/24/1989):

 “Unquestionably, KRS 22A.020 provides for interlocutory appeals but only from circuit court, not to circuit court from district court.
 The proper procedure for appeals from district court is governed by KRS 23A.080, and therein we see no corollary to KRS 22A.020(4) authorizing an interlocutory appeal by the Commonwealth.?
 

     The Court of Appeals in Commonwealth v. Williams, 995 S.W.2d 400 (KYCA, 1999)  acknowledged that there was no right to an interlocutory appeal from District Court orders to the Circuit Court, but they suggested a way the same thing could be achieved by a ruse that is highly questionable but which has never been overruled by the Supreme Court.

The Court of Appeals in Commonwealth v. Williams, 995 S.W.2d 400 (KYCA, 1999) permitted an original action to be filed in Circuit court seeking a writ of prohibition against the District court ruling in lieu of an interlocutory appeal which is not authorized.

 There has been no Sup. Ct. ruling which upholds the suggestion found in Williams that admitted an interlocutory appeal from District Court to Circuit Court was not authorized, but that suggested that the Commonwealth could file an original action  in Circuit Court (naming the District Court Judge as the defendant) to seek a writ of prohibition against the District Court Judges pre-trial ruling.

    The problem with Williams is that it has never been confirmed by the Supreme Court that the procedure of filing an original action overrides the prohibition against interlocutory appeals from District Court to Circuit Court.

    The Court of Appeals in Billingsley v. Commonwealth, No. 2002-CA-001879-MR (Ky.App. 06/04/2004)  ( NOTE: THIS CASE WAS ORDERED DEPUBLISHED BY KY. SUP. CT. )     described the procedure discussed in Williams to get around the Tipton prohibition against interlocutory District Court appeals:

The Court held:
“ In our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court. See SCR 1.040(6). CR 81 allows the old remedy by writs of mandamus and prohibition to be obtained by an original action in the appropriate court. This is not an immediate and direct interlocutory appeal to the appellate court but an original action. Procedurally, review is granted, thereby comporting with KRS 23A.080(2) which says, “The circuit court may issue all writs necessary in aid of its appellate jurisdiction . . . .”
   The Supreme Court was petitioned by District Judge Billingsley to review the decision of the Court of Appeals which upheld the “original action? procedure to obtain an interlocutory review of a District Court pre-trial suppression order.  They denied discretionary review but then depublished the case.   There were many issues in the case, and it cannot be said that the Sup. Ct. intended to take any position on the “original action in lieu of an appeal doctrine? which was originally discussed by the Court of Appeals in the Williams case.

      Assuming that the Commonwealth files an original action in Franklin Circuit Court seeking a Writ of Prohibition against Judge Melcher’s District Court ruling, then KRS 22A.020(5) would appear to allow the aggrieved party to petition the Court of Appeals for a writ of certiorari…but note that KRS 22A.020(5) uses the word “appeal? and does not refer to an original action filed against the District Court Judge in Circuit Court.
 

In the Billingsley v. Commonwealth case, Judge Billingsley suppressed a BA test.  The Commonwealth filed an original action in the Carroll Circuit Court naming Judge Billingsley at the only party defendant, and the Circuit Court granted a Writ of Prohibition setting aside the evidentiary ruling of the District Court.
 

Judge Billingsley then appealed to the Court of Appeals, where the Writ of Prohibition was upheld by a 2 to 1 decision.  Judge Billlingsley then petitioned for Discretionary Review to the Supreme Court.  Discretionary review was denied, but the Court of Appeals case was ordered depublished.   
 

     KRS 22A.020 sets out the jurisdiction for appeals.  It only authorizes appeals from Circuit Court of orders.  It does not extend this right to allow appeals of orders from District Courts.
                                              CONCLUSION
      We conclude from our reading of the caselaw and the statutes applicable to criminal appeals, that there is no right for the Commonwealth to appeal an order of the Franklin Circuit Court.

    However, the Commonwealth may be permitted to follow the procedure first mentioned in the Williams case, and file an original action in the Franklin Circuit Court seeking a Writ of Prohibition from Judge Melcher’s order.  This action would be styled, Commonwealth v. Melcher.

    From any final ruling of the Franklin Circuit Court in this “original action?, then the aggrieved party under KRS 22A.020 (4) would be authorized to appeal to the Court of Appeals.  .
 

Pursuant to CR 73.01 any party may in lieu of an appeal to the Court of Appeals, file a motion for transfer of the case to the Supreme Court as provided by CR 74.02.  The Supreme Court may grant or deny the motion to bypass the Court of Appeals.
 

    If the Court of Appeals hears the appeal from Circuit Court, the aggrieved party would then be allowed only to request the right to appeal to the Supreme Court by petitioning for Discretionary Review.
 


 

Authorities:
 CR 73.01 GENERAL PROVISIONS  -     (2) All appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken. After such filing, if the appeal is from a circuit court, any party may file a motion for transfer of the case to the Supreme Court as provided in CR 74.02.
A motion for discretionary review by the Supreme Court of a decision of the Court of Appeals, or by the Court of Appeals of an appellate decision of the circuit court, shall be made as provided in Rule 76.20.
 KRS 22A.020 (5) Any party aggrieved by the judgment of the Circuit Court in a case appealed from a court inferior thereto may petition the Court of Appeals for a writ of certiorari.

“KRS 22A.020 Jurisdiction — Appeal procedures.
(1) Except as provided in Section 110 of the Constitution, an appeal may be taken as a
matter of right to the Court of Appeals from any conviction, final judgment, order,
or decree in any case in Circuit Court, including a family court division of Circuit
Court, unless such conviction, final judgment, order, or decree was rendered on an
appeal from a court inferior to Circuit Court.
(2) The Court of Appeals has jurisdiction to review interlocutory orders of the Circuit
Court in civil cases, but only as authorized by rules promulgated by the Supreme
Court.
(3) Notwithstanding any other provision in this section, there shall be no review by
appeal or by writ of certiorari from that portion of a final judgment, order or decree
of a Circuit Court dissolving a marriage.
(4) An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the Circuit Court, but only under the following conditions
   (Note this does not say such an appeal can be taken from the District Court…only from the Circuit Court.)
 (a) Such appeal shall not suspend the proceedings in the case.
(b) Such appeal shall be taken in the manner provided by the Rules of Criminal
Procedure and the Rules of the Supreme Court, except that the record on
appeal shall be transmitted by the clerk of the Circuit Court to the Attorney
General; and if the Attorney General is satisfied that review by the Court of
Appeals is important to the correct and uniform administration of the law, he
may deliver the record to the clerk of the Court of Appeals within the time
prescribed by the above-mentioned rules.
(c) When an appeal is taken pursuant to this subsection, the Court of Appeals, if
the record so warrants, may reverse the decision of the Circuit Court and order
a new trial in any case in which a new trial would not constitute double
jeopardy or otherwise violate any constitutional rights of the defendant.
(5) Any party aggrieved by the judgment of the Circuit Court in a case appealed from a court inferior thereto may petition the Court of Appeals for a writ of certiorari.
Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 66, sec. 16, effective June 24, 2003. — Created
1976 Ky. Acts ch. 70, sec. 3, effective March 23, 1976.
 

              In a case applying to Circuit Courts, the Court held:

Commonwealth v. Blincoe, 33 S.W.3d 533, 33 S.W.3d 533 (Ky.App. 12/01/2000)
We do not find that Eaton v. Commonwealth, supra, permits pre-trial proceedings to be held in abeyance until a ruling is made on the interlocutory order.

 Eaton holds that unless the defendant’s “constitutional right to a speedy trial were unduly threatened, we see no reason why an interlocutory `ruling’ entered prior to trial . . . could not be reviewed by appeal.” Id. at 639.

The Eaton court indicated that where a defendant’s right to a speedy trial was threatened by the requested delay, the prosecution might wish to request a writ of prohibition. The proper avenue for the prosecution when aggrieved by an interlocutory order of the trial court is an appeal of the ruling. Commonwealth v. Williams, Ky. App., 995 S.W.2d 400, 402 (1999).

KRS 23A.080 Appeals from District Court — Issuance of writs by Circuit Court.
(1) A direct appeal may be taken from District Court to Circuit Court from any final
action of the District Court.
(2) The Circuit Court may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction.
Effective: January 2, 1978
History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 482, effective January 2,
1978.
 

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