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Kentucky Supreme Court: Probation Cannot be Extended for Sex Offender Treatment

The Supreme Court of Kentucky has held that a probationer’s period of probation cannot be extended to require completion of a sex offender treatment program.

Elmer David Miller was originally charged with felony first-degree unlawful transaction with a minor. He entered into a plea agreement for a misdemeanor charge of criminal attempt to commit first-degree unlawful transaction with a minor, because the victim was over the age of sixteen. The plea agreement included two years of probation and required Miller to “[a]ttend any counseling recommended by probation and parole.”

Following the recommendation of the Division of Probation and Parole, Miller enrolled in the state’s sex offender treatment program. Shortly before his period of probation ended, his probation officer informed the trial court that Miller would be unable to complete the program before the expiration of his probation term. The court then held a hearing and extended Miller’s probation until he finished the three-year sex offender treatment program.

Miller challenged the trial court’s order and the Court of Appeals reversed, holding that he had not agreed to the extension of his probation and, in fact, had opposed it at the hearing. The appellate court remanded the case for a determination of whether Miller’s term of probation should have been allowed to expire or should have been revoked for his failure to complete the treatment program. See: Miller v. Commonwealth of Kentucky, 2010 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. 2010).

On discretionary review by the Kentucky Supreme Court, the state agreed that the Court of Appeals was correct in concluding Miller’s term of probation could not be extended. The Court concurred, stating the statutory two-year period for misdemeanors is an “absolute limit, absent some overriding statute or waiver by the defendant,” neither of which applied in this case.

The Supreme Court further found that Miller had not been convicted of a sex crime, because under state law criminal attempt is a “separate, inchoate offense.” As such, the Division of Probation and Parole incorrectly believed Miller had to complete a sex offender treatment program. That program, the Court held, only applies to felony sex offenses and thus was not applicable to Miller, who was convicted of a misdemeanor.

Finally, the Court found that a term of probation cannot be extended beyond the limit set by statute to facilitate completion of a sex offender treatment program. Combining that legal principle with precedent that a trial court must hold a hearing and revoke probation before the period of probation ends, the trial court was without jurisdiction to act in Miller’s case as its order extending his probation was entered months after his probationary term was over.

Consequently, the case was remanded to discharge Miller from probation. See: Miller v. Commonwealth of Kentucky, 391 S.W.3d 801 (Ky. 2013).

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