RENDERED: APRIL 8, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0621-MR

DANIEL MORELAND APPELLANT

APPEAL FROM CLINTON CIRCUIT COURT

v. HONORABLE DAVID L. WILLIAMS, JUDGE

 ACTION NOS. 08-CR-00078 AND 08-CR-00079

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

REVERSING

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BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Daniel Moreland (“Appellant”) appeals from an order 

of the Clinton Circuit Court revoking his probation. He argues that his sentence 

has been fulfilled, and that the circuit court erred in failing to make findings in 

support of probation revocation. For the reasons stated below, we reverse the order 

of the Clinton Circuit Court revoking Appellant’s probation.
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FACTS AND PROCEDURAL HISTORY

In 2008, a Clinton County grand jury returned two indictments against 

Appellant charging him with various sex offenses. Appellant pleaded guilty to 

reduced charges under both indictments, and on April 19, 2010, was sentenced to 

“a total of twenty (20) years, serve a total of ten (10) years, balance probated. 

Probation is to be supervised for a period of ten (10) years.” 

After serving 10 years in prison, Appellant was released and was 

purportedly placed on 10 years of probation. On March 15, 2021, the 

Commonwealth moved to revoke Appellant’s probation based on numerous 

violations. Appellant responded that there was no statutory mechanism to probate 

a sentence after time had been served.

A hearing on the matter was conducted on April 8, 2021. Appellant, 

through appointed counsel, did not contest the violations. Rather, he argued that 

revocation of probation was improper because the statutory law does not allow for 

a sentence of 10 years in prison followed by 10 years of probation. The 

Commonwealth responded that Appellant accepted the plea offer providing for a 

20-year sentence – the last 10 of which were probated – in exchange for 

substantially reduced charges. Further, the Commonwealth noted that the 

Department of Corrections accepted the sentence. The circuit court revoked 

Appellant’s probation, and this appeal followed.
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STANDARD OF REVIEW

We review a trial court’s order revoking probation for abuse of 

discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). Abuse of

discretion is found where the decision is “arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999).

ARGUMENTS AND ANALYSIS

Appellant, through counsel, argues that the Clinton Circuit Court 

committed reversible error in revoking his probation. He asserts that instead of 

revoking his probation, the court should have ordered that his sentence was 

fulfilled. As a basis for this claim, Appellant directs our attention to Kentucky 

Revised Statutes (“KRS”) 533.040(1), which provides that “probation . . . 

commences on the day it is imposed.” Appellant notes that the order addressing 

probation was entered on April 22, 2010,1and it is upon this day that the 

probationary period should have commenced. Appellant also cites KRS 

533.020(4), which states that the period of probation shall not exceed five years, or 

the time necessary to complete restitution. No restitution was ordered in this case. 

Finally, Appellant directs us to Woll v. Commonwealth ex rel. Meredith, 284 Ky. 

1

Judgment and sentence were entered on April 19, 2010. Though not shown in the record, it 

appears that Appellant moved for probation shortly thereafter. This resulted in an order of 

probation entered on April 22, 2010. 
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783, 785, 146 S.W.2d 59, 60 (1940), which he contends holds that the courts of the 

Commonwealth may not override the legislative determination that a defendant 

could not be sentenced to both imprisonment and probation. In sum, Appellant 

argues that probation after incarceration is not authorized by the Legislature, that 

he served 10 years as required by the sentence entered by the Clinton Circuit 

Court, and that he has fulfilled his sentence and is no longer subject to probation.

The question for our consideration is whether the sentencing scheme 

created by Kentucky General Assembly allows for a period of probation after 

service of time in prison. We conclude that it does not. “When a person who has 

been convicted of an offense or who has entered a plea of guilty to an offense is 

not sentenced to imprisonment, the court may sentence him to probation[.]” KRS 

533.020(2) (emphasis added). “[P]robation . . . commences on the day it is 

imposed[,]” KRS 533.040(1), and, aside from a limited exception not applicable 

herein, probation for a felony conviction shall not exceed five years. KRS 

533.020(4). As a general rule, a trial court loses jurisdiction over a criminal 

case ten days after entry of a final judgment. Kentucky Rules of Civil Procedure 

(“CR”) 59.05; Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007). 

Sentencing options include 1) imprisonment, 2) probation, 3) 

probation with alternative sentencing, and 4) conditional discharge. KRS 
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533.010(2).2 The General Assembly has provided no option for a term of 

imprisonment followed by a period of probation, also known as a “split sentence.” 

See Woll, supra, holding that the Legislature has not provided for sentence 

splitting.3

Probation is also to be distinguished from parole: 

[P]robation and parole are distinct from one another. 

Probation is a sentencing alternative; the trial court . . . 

first decides on a sentence of imprisonment . . . but then 

imposes conditions for release and supervision – in lieu 

of implementation of incarceration – at sentencing. The 

power to enter a judgment sentencing a defendant to a 

sentence of probation rests entirely with trial courts. But 

once a defendant is incarcerated, the actual length of [a 

defendant’s] imprisonment is determined by the parole 

board . . . . [T]he power to grant parole is a purely 

executive function. Kentucky courts have . . . 

conceptualized probation as the suspension of 

the imposition of a sentence while, after imposition, 

parole suspends execution of a sentence[.]

Edwards v. Harrod, 391 S.W.3d 755, 760-61 (Ky. 2013) (internal quotation marks, 

footnotes, and citations omitted) (emphasis in original).

Further, 

[w]hether recommended by an errant jury or by the 

parties through a plea agreement, a sentence that is 

outside the limits established by the statutes is still an

illegal sentence. Furthermore, an illegal sentence cannot 

2

See also Kentucky Court of Justice judgment and sentencing form AOC-445.

3 Woll was rendered 82 years ago and addressed the statutory law as it existed at the time. As 

such, its precedential value is limited.
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stand uncorrected. Because it is the trial judge, and not 

the jury or the prosecutor or the defendant, that actually 

imposes a sentence by signing his or her name to the final 

judgment, it is to the judiciary that the legislative 

commandments . . . are directed. The fact that [the 

defendant] agreed to an illegal sentence did not matter.

A sentence that lies outside the statutory limits is an 

illegal sentence, and the imposition of an illegal sentence 

is inherently an abuse of discretion. Our courts must 

not be complicit in the violation of the public policy 

embedded in our sentencing statutes by turning a blind 

eye to an unlawful sentence, regardless of a defendant’s 

consent. Because the plea agreement violated the law, it 

[was] a contract which our courts may not enforce. 

Further, an appellate court is not bound to affirm an 

illegal sentence just because the issue of the illegality 

was not presented to the trial court. 

Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018) (internal 

quotation marks and citations omitted) (emphasis added).

The Clinton Circuit Court’s order of probation after imprisonment 

was contrary to KRS Chapter 533. As such, it was an “illegal sentence” and the 

revocation of the probation inherently an abuse of discretion. Phon, supra. It

matters not that the sentence was bargained for in exchange for a guilty plea, nor 

that it was accepted by the Department of Corrections. 

“In cases involving statutory interpretations, the duty of the court is to 

ascertain and give effect to the intent of the General Assembly.” Commonwealth v. 

Harrelson, 14 S.W.3d 541, 546 (Ky. 2000). The courts may not “add or subtract 

from the legislative enactment or discover meanings not reasonably ascertainable 
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from the language used.” Id. (citation omitted). KRS Chapter 533 is not 

ambiguous. As the circuit court was not vested with authority to order probation 

after imprisonment, Appellant was never on probation after his release from prison. 

As such, he could not have violated the conditions thereof.

CONCLUSION

Though Appellant was sentenced to 20 years in prison, he was ordered 

to serve only 10 years of the sentence. We may not now reach back through the 

corridor of time and impose a sentence in excess of the term of imprisonment

ordered on April 19, 2010 – a term which Appellant has already completed. 

Further, there is no lawful basis for remanding the matter for resentencing after 

Appellant’s term of imprisonment was completed. The imposition of a 

probationary period after service of imprisonment is ex facie illegal, and 

constitutes an abuse of discretion. We hold as a matter of law that a trial court may 

not order a term of imprisonment followed by a period of probation. Appellant, 

therefore, was not on probation upon his release from incarceration, and could not 

have violated its purported terms. As noted in Phon, 545 S.W.3d at 302, “an 

illegal sentence cannot stand uncorrected.” Appellant’s remaining argument is 

moot. For these reasons, we reverse the April 8, 2021 order of the Clinton Circuit 

Court revoking Appellant’s probation.
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ALL CONCUR.

BRIEFS FOR APPELLANT:

Molly Mattingly

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Stephanie L. McKeehan

Assistant Attorney General

Frankfort, Kentucky