RENDERED: OCTOBER 14, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1386-MR

CLARENCE BARBOUR APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NO. 10-CR-003962

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.

CETRULO, JUDGE: Appellant Clarence Barbour (“Barbour”) appeals the 

Jefferson Circuit Court order revoking his probation. Although Barbour met the 

requirements for automatic discharge in July 2021, the trial court extended his 

probationary period until it could hold a revocation hearing. As such, the trial 

court retained jurisdiction to revoke Barbour’s probation. We affirm.
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I. FACTUAL AND PROCEDURAL HISTORY

In July 2011, Barbour pled guilty to one count of second-degree 

assault and one count of third-degree terroristic threatening. In August of that 

year, the trial court sentenced him to five years of incarceration, probated for five 

years. Then, in April 2014, the Commonwealth moved to revoke Barbour’s 

probation after the Division of Probation and Parole reported that Barbour had 

absconded from supervision. However, Barbour failed to appear for the hearing 

and the trial court issued a bench warrant for his arrest. Six months later – on 

October 29, 2014 – when Barbour appeared on the matter, the trial court revoked 

his probation. Then, in June 2015, the trial court granted Barbour shock probation.

A couple of years later, in late 2017, the Commonwealth again moved 

to revoke Barbour’s probation, citing absconding; Barbour again failed to appear;

and the trial court again issued a bench warrant in November 2017. Nearly four 

years later – on July 28, 2021 – Barbour appeared on that bench warrant (the “July 

2021 Hearing”). During the July 2021 Hearing, the trial court noted that although 

Barbour’s probation had been set to expire two years earlier – on October 29, 2019

(five years after it had initially revoked his probation) – his pending warrant held 

the probationary period open. Further, the trial court extended Barbour’s probation 

“to this next court date which we are going to get right now . . . Wednesday, 

August 11 at 10:30.” The trial court noted that “his probation [was] extended until 
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it got that taken care of on August the 11th.” After the hearing, the trial court’s

order reiterated that decision: “extend supervision until next date – 8/11 @ 

10:30 A.” 

The August 11, 2021 Hearing did not occur, however, because there 

had been a death in the Jefferson County Courthouse community and the trial court 

closed early for the funeral. The parties agreed to continue the hearing to 

September 1, 2021, but the trial court did not enter an additional order extending 

Barbour’s probationary period to the new date. At the September 1, 2021 Hearing, 

the parties agreed to pass the motion to revoke to October 27, 2021, and the trial

court stated that it was extending probation to that date. 

When the parties reconvened on October 27, 2021, defense counsel 

questioned whether the trial court had any record that it had extended the 

probationary period from the August 11, 2021 hearing date to the September 1, 

2021 Hearing. The trial court stated that it had extended the probationary period 

and it had an order that the agreement was “to pass it and extend it to the October 

27th date, which is today. I think technically it was extended even though we 

weren’t in court on August 11.” The trial court then revoked Barbour’s probation 

on October 27, 2021.
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Barbour appeals the probation revocation and argues that the trial

court did not retain jurisdiction because it failed to enter an order on August 11, 

2021, extending his probation to the final revocation hearing.

II. STANDARD OF REVIEW

Sentencing issues – like those presented here – are jurisdictional. 

Jensen v. Commonwealth, 564 S.W.3d 335, 337 (Ky. App. 2018). We review 

jurisdictional issues de novo. Id. (citing Appalachian Reg’l Healthcare, Inc. v. 

Coleman, 239 S.W.3d 49, 54 (Ky. 2007)).

III. ARGUMENT

Barbour argues that the trial court did not have jurisdiction to revoke 

his probation on October 27, 2021, because his probationary period had expired,

and his warrant was no longer pending, thereby “automatically discharging” him 

from probation. Additionally, he argues that the trial court failed to properly 

extend his probationary period to the October 2021 Hearing once he met the 

requirements for automatic discharge. 

Under KRS1 533.020(4), “probation is automatically discharged upon 

completion of [the] probationary period unless [1] it has been revoked or [2] an 

arrest warrant is pending.” Commonwealth v. Tapp, 497 S.W.3d 239, 242 (Ky.

1 Kentucky Revised Statute.
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2016). In Tapp, the Kentucky Supreme Court emphasized that “[i]f neither 

condition exists, the trial court loses jurisdiction both to revoke and to modify the 

conditions of probation.” Id. 

The Kentucky Supreme Court further explained, however, that after 

the initial appearance on the warrant – i.e., when the warrant stopped “pending” 

and a defendant would have been automatically discharged – the trial court could 

extend the probationary period for a reasonable time until it could hold a final 

revocation hearing. Id. Such extension required that the trial court had entered the 

warrant before probation expired and that it duly entered an order extending the 

probationary period to the revocation hearing. Id. at 241 (citing KRS 533.020(4)).

A. Expiration of Probationary Period and Pending Warrant

First, Barbour argues that he completed his probationary period 

without revocation, meeting the first requirement under Tapp. We agree. The trial 

court stated on numerous occasions that probation would have ended in October 

2019, five years after it initially revoked Barbour’s probation. However, the 

Commonwealth disagrees with that calculation and claims Barbour’s probation 

would not have ended until June 2020, five years after the trial court granted 

Barbour shock probation. 

Further, the Commonwealth claims that the warrant “tolled” 

Barbour’s probationary period from the date the trial court issued the warrant – in 
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November 2017 – until the July 2021 Hearing. Therefore, the Commonwealth 

argues, Barbour still had 948 days2to serve on his probation, and it was 

unnecessary for the trial court to extend the probationary period at all. In so 

arguing, the Commonwealth relied on the “tolling” analysis in the Kentucky 

Supreme Court case, Whitcomb v. Commonwealth, 424 S.W.3d 417 (Ky. 2014). 

While Barbour agrees that a pending warrant holds open a defendant’s

probationary period when the trial court issued it prior to the expiration of his 

probation, he does not agree that the KRS 533.040(2) tolling provision was 

triggered. See Whitcomb, 424 S.W.3d at 419.

3

 Barbour argues that the tolling 

provision in KRS 533.040(2) is triggered only after two conditions are met: (1) the 

court determined the defendant violated the conditions of his probation; and (2) the 

court reinstated the defendant’s probation. Only at such point would the “period 

between the date of the violation and the date of restoration of probation . . . not be

computed as a part of the period of probation . . . .” Commonwealth v. Dulin, 427 

S.W.3d 170, 174 (Ky. 2014) (citing KRS 533.040(2)). Barbour contends that 

2 The Commonwealth argues Barbour’s probation “paused” when the trial court issued the 

warrant on November 6, 2017, and the time did not begin running again until July 28, 2021, 

when Barbour first appeared on the matter. By their calculation, Barbour had a total of 1,828 

days of probation (five years); Barbour served 880 of those days – from June 10, 2015 to 

November 6, 2017; which left 948 days of probation to serve (1,828 - 880 = 948).

3

“Indeed, this Court very recently stated that the presence of either an active warrant or the 

previous revocation of one’s probation will foreclose the probationer from being discharged and 

the period of probation will remain open.” Id. (citations omitted).
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neither condition was met;4therefore, tolling was only relevant so as not to 

“automatically discharge” him from probation while he had a pending warrant. It 

was not relevant as to whether it paused then restarted his probationary period as 

the Commonwealth asserts. Again, we agree.

Although the Kentucky Supreme Court, in Whitcomb, used the term 

“toll,” the Court did not conduct an analysis under KRS 533.040(2) and therefore 

did not appear to be making that claim. Whitcomb does contain similar facts to

Barbour’s;5 however, the case is not particularly helpful in determining whether 

Barbour’s probationary period should have been tolled under the statute so as to 

subtract an amount of time from his probationary period. 

4

Importantly, the trial court did not reinstate the defendant’s probation at the October 2021 

Hearing, and instead revoked Barbour’s probation. As such, the second step of the tolling 

analysis was never met.

5 Like here, Whitcomb involved a defendant whose sentence was probated for five years. 

Whitcomb, 424 S.W.3d at 418. A month after sentencing, the defendant failed to report and the 

trial court issued a warrant for her arrest, but she did not appear for nearly 11 years. Id. By that 

time, her five-year probationary period had expired, and the trial court determined that her 

probation expired six years earlier (five years after the sentencing), so it did not have jurisdiction 

to revoke her probation and dismissed the Commonwealth’s motion. Id. This Court reversed 

(for reasons our Supreme Court ultimately disagreed with) and then our Supreme Court clarified 

that even though the probationary period was set to expire six years earlier, the pending warrant 

tolled that period because the trial court had issued the warrant before the period expired. Id. 

Therefore, the defendant was not automatically discharged from probation, and the probationary 

period remained open so as to hold a probation revocation hearing. Id. at 419. Our Supreme 

Court held that “the issuance of a warrant for a probation violation will toll the period of 

probation preventing the probationer from being automatically discharged pursuant to KRS 

533.020(4)” so long as the trial court issued the warrant before the probationary period expired. 

Id. at 420 (emphasis added). 
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Luckily, two months after Whitcomb was published, our Supreme 

Court further explained the tolling provision of KRS 533.040(2) in Dulin, 427 

S.W.3d at 174. There, the Kentucky Supreme Court noted that “[f]rom the plain 

text of KRS 533.040(2), it is seen that the provision is implicated when ‘a court . . .

determines that a defendant violated the conditions of his probation,’ and does not 

order revocation of probation.” Id. Only when the trial court determines the 

defendant violated the conditions of probation and reinstates probation does the 

trial court then calculate the period that “shall not be computed as a part of the 

period of probation.” Id.

There, the Kentucky Supreme Court conducted a thorough analysis of 

KRS 533.040(2) and concluded that the trial court had determined, at each of the 

revocation hearings, that the defendant violated his probation. Dulin, 427 S.W.3d 

at 174. Second, the Kentucky Supreme Court found that the trial court had clearly 

reinstated the defendant’s probation following the hearings. Id. at 174-75.

Here, however, the trial court did not make a determination regarding 

whether Barbour violated his probation until October 27, 2021. Further, at that 

point, the trial court revoked Barbour’s probation – it did not reinstate his

probation. Therefore, the tolling provision of KRS 533.040(2) was not triggered. 

Further, in Whitcomb, the Kentucky Supreme Court noted it was

simply tolling the “automatic discharge” feature of KRS 533.020(4) until the 
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defendant came before the court because she did not meet the requirements for 

automatic discharge with a pending warrant. Whitcomb, 424 S.W.3d at 419. It did 

not, as the Commonwealth suggests, toll her probation under KRS 533.040(2) so as 

to recompute her probationary period. We therefore are not persuaded by the 

Commonwealth’s argument and will follow Dulin’s tolling analysis. As such, we 

find that Barbour’s probationary period was completed without revocation, and 

met the first requirement under Tapp. Tapp, 497 S.W.3d at 242.

Our second step then is to determine whether Barbour had a pending 

warrant. Id. An arrest warrant is “pending” until the defendant (1) has been 

arrested and (2) appears in court on that matter. Id. at 241 (citing RCr6 2.06(1)). 

Importantly, the appearance in court does not require a full “disposition . . . of the 

matter for which [the warrant] was issued[.]” Id. Here, Barbour’s warrant stopped 

pending in July 2021 because at that point, he had been arrested and appeared in 

court for the July 2021 Hearing. Therefore, because Barbour’s probationary period 

had expired – without revocation – and his warrant was not pending, he met the 

requirements for automatic discharge in July 2021. However, importantly, the trial 

court did have the authority to extend the probationary period in such 

circumstances – thereby postponing automatic discharge – until it could hold a 

revocation hearing. Id. at 242. 

6 Kentucky Rule of Criminal Procedure. 
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B. Extension of Probationary Period

In Tapp, the Kentucky Supreme Court explained that after the initial 

appearance on the warrant – i.e., when the warrant stopped “pending” – the trial

court could extend the probationary period for a reasonable time until it could hold 

a final revocation hearing. Id. To grant such extension, a trial court must duly 

enter an order stating as much. Id. (citing KRS 533.020(4)) (“A probationer is 

entitled to due process protections, one of which is a ‘duly entered court order.’”).

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Thus, here, to extend the probationary period – so as to postpone

Barbour’s automatic discharge – the trial court needed to enter an order stating it 

was extending “the probationary period for a reasonable time until a probation 

revocation hearing could occur.” Id. at 242 (citing KRS 533.020(4)). It is 

undisputed that the trial court followed that directive and extended the 

probationary period from the July 2021 Hearing to the next hearing date via a duly 

entered order. As discussed, after the July 2021 Hearing, the trial court’s order 

stated that it would “extend supervision until next date – 8/11 @ 10:30 A.” 

As stated, Barbour argues that the trial court failed to extend the 

probationary period again when the hearing was rescheduled to accommodate the 

7

See also Dulin, 427 S.W.3d at 176 (“The written (‘duly entered’) order referred to in KRS 

533.020(4) is required when the trial court chooses to exercise its discretion to extend or to 

shorten a term of probation, as may occur when a, probationer fails to satisfy probationary 

obligations . . . .”).
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courthouse closure. He claims the trial court lost jurisdiction at that point. The 

issue here is whether the trial court’s initial extension ran to the next in-person 

hearing (covering August 11, 2021 to September 1, 2021) despite the trial court’s 

failure to issue a separate order covering those dates. We believe it did.

That did not happen here. Here, the trial court recognized the need to 

extend Barbour’s probation at the July 2021 Hearing because his probationary 

period had expired, and his warrant stopped pending on that date. Therefore, the 

trial court properly extended Barbour’s probationary period via a duly entered 

order to hold his probation open to the next hearing, when it could “get [the issues] 

taken care of.”

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 That hearing, although initially scheduled for August 11, 2021, 

did not take place until September 1, 2021, a date to which both parties agreed. 

Under these circumstances, it is clear the trial court intended to extend 

the probationary period until the next hearing. August 11, 2021 was not inherently 

significant; it was simply the next open date to hold the revocation hearing. 

Therefore, when the courthouse closed on that date, the trial court worked with 

both parties to determine the next best date, within a reasonable time, to complete 

the hearing. On that new date, the trial court again extended the probationary 

period to the final revocation hearing. The actions of the trial court followed the 

8

“To interpret the language of a trial court’s order we apply substantially the same principles of 

construction as we do in interpreting statutes.” Commonwealth v. Wright, 415 S.W.3d 606, 609 

(Ky. 2013) (citing Crouch v. Crouch, 201 S.W.3d 463, 465-66 (Ky. 2006)).
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guidance in Tapp. As such, we find that the trial court properly extended 

Barbour’s probation and thereby retained jurisdiction until the October 27, 2021 

Hearing. 

IV. CONCLUSION

Although Barbour’s probationary period had expired without 

revocation and his warrant stopped pending – meeting the requirements for 

automatic discharge – the Jefferson Circuit Court properly extended his 

probationary period until it could hold the probation revocation hearing. 

Therefore, the trial court retained jurisdiction through the October 27, 2021 

Hearing and its order revoking Barbour’s probation is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Euva D. May

Louisville, Kentucky

Jennifer E. Hubbard

Louisville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Christina L. Romano 

Assistant Attorney General

Frankfort, Kentucky