# Payne v. Commonwealth

> Kentucky Supreme Court · February 16, 1983 · 656 S.W.2d 719

URL: https://www.frixlaw.com/law-library/cases/9763309

## Case

- **Full name:** Scott PAYNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** February 16, 1983
- **Citations:** 656 S.W.2d 719; 1983 Ky. LEXIS 295
- **Precedential status:** Published
- **Opinion:** Dissent by Aker
- **Judges:** Stephens, Gant, Leibson, Stephenson, Vance, Winter-Sheimer, Aker
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763309

## Opinion text

AKER, Justice,
dissenting.
I concur with the majority opinion as it relates to the primary offense, however, I must respectfully dissent from the majority opinion as it relates to the persistent felony proceeding.
*722 The majority relies on the rule “that instruction on a lesser degree may be rejected if the evidence does not warrant it.” In applying this “well-settled” rule, the majority overrules a long line of cases standing for another well-settled rule — that a jury in a persistent felony proceeding must be given the option, when requested, of returning a verdict that the defendant has been convicted of both or only one of the convictions proved, regardless of whether the proof of convictions has been contradicted. Satterly v. Commonwealth, Ky., 437 S.W.2d 929 (1968); Rodgers v. Commonwealth, Ky., 399 S.W.2d 299 (1966); Marcum v. Commonwealth, Ky., 398 S.W.2d 886 (1966); Brown v. Commonwealth, 378 S.W.2d 608 (1964). This rule flows from the very nature of a persistent felony proceeding. The proceeding is solely for the purpose of sentence enhancement.
I understand the majority’s reasoning and I applaud the scholarly treatment of the progression of our ease law which the majority, by this opinion, overrules. However, if the jury is to have a function where two convictions are proved and are uncon-tradicted, the jury must have the right to return a verdict on the proof regarding these convictions, either as a group or separately. Therefore, I would not overrule the above-mentioned line of cases.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763309. Public record. Not legal advice.