Skip to main content

What is the law about Kentucky sex offender shock probation eligibility?

Paducah, KY |
Filed under: Criminal defense

Can a 20 year old be eligible for shock probation if convicted of class c felony rape. The age of the victim was 13.

Attorney Answers 1

Posted

Rape (class C felony) is governed by :
KRS 510.050. Rape in the second degree

(1) A person is guilty of rape in the second degree when:
(a) Being eighteen (18) years old or more, he engages in sexual intercourse with another person less than fourteen (14) years old; or

(b) He engages in sexual intercourse with another person who is mentally incapacitated.

(2) Rape in the second degree is a Class C felony.

Cite as KRS 510.050

History. Effective: July 15, 2002
Amended 2002, Ky. Acts ch. 259, sec. 3, effective July 15, 2002. -- Created 1974 Ky. Acts ch. 406, sec. 85, effective January 1, 1975.
---------------------------------------------------------------------------

Shock Probation is governed by KRS 439.265:

439.265. Shock probation in felony conviction - Procedure - Availability for violent offenders and sexual offenders - Comprehensive sex offender presentence evaluation - Exercise of authority. image description

Kentucky Revised Statutes

Title 40. CRIMES AND PUNISHMENTS

Chapter 439. PROBATION AND PAROLE

Current through 2013 Ky. Acts ch. 134


§ 439.265. Shock probation in felony conviction - Procedure - Availability for violent offenders and sexual offenders - Comprehensive sex offender presentence evaluation - Exercise of authority

(1) Subject to the provisions of KRS Chapter 439 and Chapters 500 to 534, any Circuit Court may, upon motion of the defendant made not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced, or delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon terms the court determines. Time spent on any form of release following conviction shall not count toward time required under this section.

(2) The court shall consider any motion filed in accordance with subsection (1) of this section within sixty (60) days of the filing date of that motion, and shall enter its ruling within ten (10) days after considering the motion. The defendant may, in the discretion of the trial court, have the right to a hearing on any motion he may file, or have filed for him, that would suspend further execution of sentence. Any court order granting or denying a motion to suspend further execution of sentence is not reviewable.

(3)
(a) During the period in which the defendant may file a motion pursuant to this statute, the sentencing judge, within his or her discretion, may order that the defendant be held in a local detention facility that is not at or above maximum capacity until such time as the court rules on said motion. During this period of detention, and prior to the court's ruling on said motion, the court may require the defendant to participate in any approved community work program or other forms of work release. Persons held in the county jail pursuant to this subsection shall not be subject to transfer to a state correctional facility until the decision is made not to place the petitioner on shock probation.

(b) The provisions concerning community work programs or other forms of work release shall apply only to persons convicted of Class C or Class D felonies, and may be granted only after a hearing at which the Commonwealth's attorney has the opportunity to present arguments in favor or opposition thereto.

(4) If the defendant is a violent offender as defined in KRS 439.3401, the sentence shall not be probated under this section.

(5) If the defendant has been convicted of an offense under KRS 510.050, 510.080, 530.020, 530.064(1)(a), or 531.310, or criminal attempt to commit any of these offenses under KRS 506.010, the sentence shall not be suspended, in accordance with KRS 532.045.

(6) When a defendant has been convicted of a

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

Mark as helpful

1 lawyer agrees

4 comments

Frank Mascagni III

Frank Mascagni III

Posted

(6) When a defendant has been convicted of a sex crime, as defined in KRS 17.500, the court shall order a comprehensive sex offender presentence evaluation, unless one has been provided within the past six (6) months, in which case the court may order an update of the comprehensive sex offender presentence evaluation of the defendant conducted by the sex offender treatment program operated or approved by the Department of Corrections or the Sex Offender Risk Assessment Advisory Board. The comprehensive sex offender presentence evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant's amenability to treatment, and shall be considered by the court in determining whether to suspend the sentence. If the court suspends the sentence and places the defendant on probation, the provisions of KRS 532.045(3) to (7) shall apply. (7) The authority granted in this section shall be exercised by the judge who imposed sentence on the defendant, unless he is unable to act and it appears that his inability to act should continue beyond the expiration of the term of the court. In such case, the judge who imposed sentence shall assign a judge to dispose of a motion filed under this section, or as prescribed by the rules and practices concerning the responsibility for disposition of criminal matters. (8) The provisions of this section shall not apply where a sentence of death has been imposed. Cite as KRS 439.265 History. Effective: July 12, 2006 Amended 2006, Ky. Acts ch. 182, sec. 28, effective July 12, 2006. -- Amended 2000, Ky. Acts ch. 401, sec. 2, effective July 14, 2000; and ch. 401, sec. 33, effective April 11, 2000. -- Amended 1994 Ky. Acts ch. 94, sec. 1, effective July 15, 1994. - Amended 1992 Ky. Acts ch. 463, sec. 63, effective July 14, 1992. -- Amended 1990 Ky. Acts ch. 497, sec. 13, effective July 13, 1990. -- Amended 1984 Ky. Acts ch. 26, sec. 1, effective February 23, 1984. -- Amended 1982 Ky. Acts ch. 153, sec. 2, effective July 15, 1982. -- Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 448, effective January 2, 1978; and ch. 15, sec. 7, effective December 22, 1976. --Amended 1974 Ky. Acts ch. 406, sec. 329. -- Created 1972 Ky. Acts ch. 169, sec. 1.

Frank Mascagni III

Frank Mascagni III

Posted

532.045. Persons prohibited from probation or postincarceration supervision - Procedure when probation or postincarceration supervision not prohibited. image description Kentucky Revised Statutes Title 50. KENTUCKY PENAL CODE Chapter 532. CLASSIFICATION AND DESIGNATION OF OFFENSES - AUTHORIZED DISPOSITION Current through 2013 Ky. Acts ch. 134 § 532.045. Persons prohibited from probation or postincarceration supervision - Procedure when probation or postincarceration supervision not prohibited (1) As used in this section: (a) "Position of authority" means but is not limited to the position occupied by a biological parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational staff, or volunteer who is an adult, adult athletic manager, adult coach, teacher, classified school employee, certified school employee, counselor, staff, or volunteer for either a residential treatment facility, a holding facility as defined in KRS 600.020, or a detention facility as defined in KRS 520.010(4), staff or volunteer with a youth services organization, religious leader, health-care provider, or employer; (b) "Position of special trust" means a position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the minor; and (c) "Substantial sexual conduct" means penetration of the vagina or rectum by the penis of the offender or the victim, by any foreign object; oral copulation; or masturbation of either the minor or the offender. (2) Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.050, 510.080, 529.040, 529.070, 529.100 where the offense involves commercial sexual activity, 530.020, 531.310, 531.320, or 531.370, or criminal attempt to commit any of these offenses under KRS 506.010, and, who meets one (1) or more of the following criteria: (a) A person who commits any of the offenses enumerated in this subsection against a minor by the use of force, violence, duress, menace, or threat of bodily harm; (b) A person who, in committing any of the offenses enumerated in this subsection, caused bodily injury to the minor;

Frank Mascagni III

Frank Mascagni III

Posted

(c) A person convicted of any of the offenses enumerated in this subsection and who was a stranger to the minor or made friends with the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection, unless the defendant honestly and reasonably believed the minor was eighteen (18) years old or older; (d) A person who used a dangerous instrument or deadly weapon against a minor during the commission of any of the offenses enumerated in this subsection; (e) A person convicted of any of the offenses enumerated in this subsection and who has had a prior conviction of assaulting a minor, with intent to commit an act constituting any of the offenses enumerated in this subsection; (f) A person convicted of kidnapping a minor in violation of the Kentucky Penal Code and who kidnapped the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection; (g) A person who is convicted of committing any of the offenses enumerated in this subsection on more than one (1) minor at the same time or in the same course of conduct; (h) A person who in committing any of the offenses enumerated in this subsection has substantial sexual conduct with a minor under the age of fourteen (14) years; or (i) A person who occupies a position of special trust and commits an act of substantial sexual conduct. Nothing in this section shall be construed to prohibit the additional period of five (5) years' postincarceration supervision required by KRS 532.043. (3) If a person is not otherwise prohibited from obtaining probation or conditional discharge under subsection (2), the court may impose on the person a period of probation or conditional discharge. Probation or conditional discharge shall not be granted until the court is in receipt of the comprehensive sex offender presentence evaluation of the offender performed by an approved provider, as defined in KRS 17.500 or the Department of Corrections. The court shall use the comprehensive sex offender presentence evaluation in determining the appropriateness of probation or conditional discharge.

Frank Mascagni III

Frank Mascagni III

Posted

(4) If the court grants probation or conditional discharge, the offender shall be required, as a condition of probation or conditional discharge, to successfully complete a community-based sexual offender treatment program operated or approved by the Department of Corrections or the Sex Offender Risk Assessment Advisory Board. (5) The offender shall pay for any evaluation or treatment required pursuant to this section up to the offender's ability to pay but not more than the actual cost of the comprehensive sex offender presentence evaluation or treatment. (6) Failure to successfully complete the sexual offender treatment program constitutes grounds for the revocation of probation or conditional discharge. (7) The comprehensive sex offender presentence evaluation and all communications relative to the comprehensive sex offender presentence evaluation and treatment of a sexual offender shall fall under the provisions of KRS 197.440. The comprehensive sex offender presentence evaluation shall be filed under seal and shall not be made a part of the court record subject to review in appellate proceedings and shall not be made available to the public. (8) Before imposing sentence, the court shall advise the defendant or his counsel of the contents and conclusions of any comprehensive sex offender presentence evaluation performed pursuant to this section and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel and the Commonwealth's attorney a copy of the comprehensive sex offender presentence evaluation. It shall not be necessary to disclose the sources of confidential information. (9) To the extent that this section conflicts with KRS 533.010, this section shall take precedence. Cite as KRS 532.045 History. Effective: June 8, 2011 Amended 2011, Ky. Acts ch. 2, sec. 94, effective June 8, 2011. -- Amended 2007, Ky. Acts ch. 19, sec. 16, effective June 26, 2007. -- Amended 2006, Ky. Acts ch. 182, sec. 43, effective July 12, 2006. -- Amended 2000, Ky. Acts ch. 401, sec. 9, effective July 14, 2000; and ch. 401, sec. 34, effective April 11, 2000. -- Amended 1998, Ky. Acts ch. 293, sec. 1, effective July 15, 1998 and ch. 606, sec. 118, effective July 15, 1998. -- Amended 1996, Ky. Acts ch. 300, sec. 3, effective July 15, 1996. --Amended 1994 Ky. Acts ch. 94, sec. 3, effective July 15, 1994. -- Created 1984 Ky. Acts ch. 382, sec. 23, effective July 13, 1984.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics