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Rule 4 Criminal proceedings

Baldwin's Kentucky Revised Statutes Annotated9th Judicial Circuit - Hardin Circuit Court

Baldwin's Kentucky Revised Statutes Annotated
9th Judicial Circuit - Hardin Circuit Court
KY RHAR Rule 4
Rule 4 Criminal proceedings
Currentness
4.01. Assignment of Cases
The Hardin Circuit Clerk (“Clerk”) shall prepare a stack of shuffled cards containing an equal number of cards marked Divisions II and III. The Clerk shall draw, anonymously and by chance, a card from the stack and assign the next returned indictment or information to the division appearing on that card. This procedure will be repeated until all of the cards in the stack have been drawn, at which time the Clerk will prepare a new stack to be used in the same manner. If at the time of the return of indictments or informations the receiving judge determines that some indictments or informations involve co-defendants or are otherwise related. they may be processed together under this section to be assigned to the same division.
4.02. Arraignments
(1) Arraignments will be conducted during the regularly scheduled criminal Motion Hours for Divisions II and HI as set out in HCR 4.06.
(2) Defendants proceeded against by information shall appear and enter a plea during the regularly scheduled criminal Motion Hours for Divisions II and III as set out in HCR 4.06.
(3) An order addressing discovery and setting deadlines for the exchange of discovery shall be entered at the arraignment. The Commonwealth shall provide discovery then available to the defendant or his or her counsel at the arraignment, or the Commonwealth may elect to wait until counsel have entered an appearance as counsel for the case to provide discovery. The Commonwealth will not be required to provide discovery more than once as a result in a change of counsel for the defendant.
4.03. Jury Trials
(1) A trial date may be set at the arraignment and shall be set at the first pretrial conference. Unless for good cause shown, a trial date shall be scheduled within six (6) months of arraignment.
(2) The court will schedule criminal trials generally in the first three weeks of each month, except in July and December.
(3) Additional jury trials may be scheduled during the first two weeks of the months of July and December in the discretion of the judges.
4.04. Pretrial Conference
(1) A pretrial conference shall be scheduled at arraignment to occur within sixty (60) days of arraignment. Any additional pretrial conference may be scheduled by motion of either party or on the court's own initiative. The parties will be expected to address pretrial issues at a pretrial conference and file written motions to be considered in advance of the pretrial conference. At the pretrial conference, the court may hear matters which are the subject of any motions filed or made orally during the pretrial conference and determine those issues then or by submission. The court also may schedule a hearing date for any motion or defer a hearing to be conducted at the beginning of or during trial. Avoiding delay and inconvenience to jurors is a primary consideration.
4.05. Representation by Counsel
(1) Indigent Defendants: All defendants charged with violation of the penal statutes and are found by the court to be indigent shall be represented by counsel with the Kentucky Department of Public Advocacy, generally through the Elizabethtown Regional Office. Upon appointment by the court, that agency shall designate the attorney(s) who will conduct the defense of the case.
(2) Withdrawal or Removal of Counsel:
A. Appointed Counsel--Except on a showing of extraordinary circumstances, appointed counsel will not be removed or permitted to withdraw on grounds of personality conflict or refusal of the defendant to cooperate with counsel.
B. Retained Counsel--“Retained counsel” means any attorney authorized to practice before this court who has not been appointed by the court to represent the defendant. Except for good cause shown, retained counsel who has appeared for the defendant at any post-indictment proceeding, will not be permitted to withdraw prior to entry of final judgment. Counsel may enter a limited appearance to make a motion pertaining to the bond status of a defendant. “Good cause” does not include inability to collect an agreed fee.
4.06. Motions
(1) Motion Hour: Motion Hours for criminal actions in Divisions II and III will begin at 10:00 a.m. and 1:15 p.m. on every Tuesday, except during the months of July and December when Motion Hours will be held only on the first and second Tuesdays. Except for good cause shown, all motions to be heard at Motion Hour must be filed no later than 3:00 p.m. on the Wednesday immediately preceding the Motion Hour.
(2) Motions in Limine: Except for good cause shown, motions in limine shall be noticed for hearing no later than the Motion Hour immediately preceding the date of the trial.
4.07. Inter-Division Transfers
When the Judge of any division to which a criminal case has been assigned is disqualified, or when the necessity for an early trial date arises, or when, in the opinion of the judges, other good and sufficient reasons so require, upon orders signed by the judges of the transferring and receiving divisions, any criminal proceeding may be transferred from one division to another.
4.08. Absence of Presiding Judge
Regardless of the assignment of a criminal proceeding to a particular division, the judge of any division may, in the absence of the assigned judge, exercise jurisdiction and sign any order or entertain any proceeding when the assigned judge is not readily available or is incapacitated.
4.09. Settlements--Notification and Entry of Pleas
(1) The parties shall immediately notify the presiding judge's secretary regarding settlement of any criminal action which is set for trial.
(2) Pleas may be entered at any time scheduled by the court as well as during any Motion Hour.
4.10. Pretrial Diversion
(1) Definition: Pretrial Diversion is the postponement of imposition of sentence upon any person who qualifies for this program, subject to certain conditions established by the court, for a period not to exceed five (5) years or until restitution is paid in full, whichever is later.
(2) Persons Eligible:
A. Any person charged with a Class D felony, who has not had a felony conviction in the ten (10) years prior to commission of the current offense, or who has not been on felony probation or parole or released from felony incarceration within the ten (10) years prior to commission of the current offense, shall be eligible for pretrial diversion.
B. The person charged must enter a guilty plea before becoming eligible for pretrial diversion.
C. Persons ineligible for probation, parole or conditional discharge under KRS 532.045 shall be ineligible for this program.
D. A person convicted of a Class D Felony for which early release is disallowed by statute, including KRS 189A.010(8), shall be ineligible for this program.
E. No person shall be eligible for this program more than once in any five (5) year period.
(3) Procedure:
A. After indictment or information any person eligible for the program may apply to the court and the Commonwealth for entry of a pretrial diversion order.
B. In applying for pretrial diversion, counsel and defendant must state on the record, that in the event diversion is granted, any right to a speedy trial or disposition of the charge(s) is waived.
C. The Commonwealth shall make a written recommendation to the court in response to each application.
D. Before making a recommendation to the court, the Commonwealth shall:
(i) Have a criminal record check performed by a reliable governmental agency to confirm that the defendant's prior criminal record does not disqualify the defendant from receiving a pretrial diversion under applicable law. Requests are not to be sent to the local Pretrial Services' office.
(ii) Interview and seek input from the victim or deceased or incapacitated victim's family and advise them of the time, date, and place that the motion for pretrial diversion will be heard by the court; and
(iii) When diversion is recommended, the Commonwealth must make written recommendations to the court of conditions for the pretrial diversion as well as the appropriate sentence to be imposed if the diversion agreement is voided.
(4) Order of Pretrial Diversion:
A. The court may, in its discretion and upon a favorable recommendation from the Commonwealth, order pretrial diversion for eligible petitioners upon terms and conditions it deems appropriate.
B. The Order of Diversion shall include:
(i) Restitution, if applicable;
(ii) Whether the diversion shall be supervised or unsupervised. If supervised, a monthly supervision fee of $25.00 shall be imposed on the defendant:
(iii) Duration of the diversion;
(iv) Require the defendant to obey all rules and regulations imposed by Probation and Parole;
(v) As required by KRS 533.030(1), direct the defendant not to commit any offense during the period of the pretrial diversion, and to comply with any other provision of KRS 533.030 or any other condition that the Court deems appropriate;
(vi) A final review date shall be set on a Motion Hour within sixty (60) days prior to the expiration of the diversion. At that review, the Commonwealth shall tender a diversion dismissal order. The submission of that order by the Clerk shall be scheduled to occur within ten (10) days after the expiration of the diversion. The order will be entered if the diversion has been successfully completed.
C. The Order of Diversion may include:
(i) That the defendant remains drug and alcohol free and be subject to random testing:
(ii) That the defendant has no violation of the Penal Code or the Controlled Substances Act;
(iii) That the defendant possesses no firearm or any other deadly weapon.
D. Duration of the pretrial diversion shall not exceed five (5) years without agreement of the defendant; however, duration of the diversion agreement shall not be less than the time required to make restitution in full, even if that exceeds five (5) years.
(5) Voiding a Diversion Order:
A. After a hearing, with notice to the Commonwealth and to the defendant, the court may void the defendant's participation in pretrial diversion upon a showing of failure to comply with the conditions of diversion or failure to make satisfactory progress.
B. If an order of pretrial diversion is voided, the defendant shall be sentenced according to law based on the defendant's prior plea of guilty.
C. Under KRS 533.256(2), the same criteria applicable to a probation revocation hearing applies to a proceeding to void an order granting diversion. Pursuant to KRE 1101(d)(5), the Rules of Evidence are inapplicable in miscellaneous proceedings such as those revoking probation.
(6) Completion of Diversion Program
If the defendant successfully completes the provisions of the pretrial diversion, the charge(s) shall be dismissed and be subject to expungement upon proper application.

Credits

HISTORY: Amended effective May 5, 2017. Prior amendments effective January 1, 2014; March 6, 2007.
Hardin Circuit Court Rule 4, KY R HARDIN CIR CT Rule 4
Current with amendments received through November 15, 2023. Some rules may be more current, see credits for details.
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