Hoskins v. Maricle

Opinion by

Justice KELLER,

concurring in part and dissenting in part.

I concur fully with Part I of the majority opinion that returns to the Chamblee 1 - Bender 2 standard for granting a writ of prohibition. I also concur with Part III(l). But, because I believe that RCr 6.16 and RCr 9.64, as interpreted by the majority opinion, violate the separation of powers provisions of Kentucky’s Constitution, I respectfully dissent as to Parts II, 111(2), and 111(3).

*27 I. SEPARATION OF POWERS

“It is well settled law in the state of Kentucky that one branch of Kentucky’s tripartite government may not encroach upon the inherent powers granted to any other branch.” 3 Unlike the U.S. Constitution, “[o]ur Constitution, Sections 27 and 28, is clear and explicit on this delineation.” 4 “[T]he framers of Kentucky’s constitution ... were undoubtedly familiar with the potential damage to the interests of the citizenry if the powers of government were usurped by one or more branches of that government.” 5 Thus, “it has been our view, in interpreting Sections 27 and 28, that the separation of powers doctrine is fundamental to Kentucky’s tripartite system of government and must be ‘strictly construed.’ ” 6 “[T]he judiciary should be particularly vigilant to restrain its own exercise of power, because of its unique position as the final and unchecked arbiter of constitutional disputes[J” 7 and the powers of the Legislature should not “stand or fall according as they appealed to the approval of the judiciary; else one branch of government, and that the most representative of the people, would be destroyed, or at least completely subverted to the judges.” 8

This Court has authority under Section 116 of the Kentucky Constitution to adopt procedural rules. 9 Just as it would be a violation of separation of powers for the Legislature to promulgate rules of practice and procedure for the Court of Justice, 10 a similar constitutional violation of separation of powers occurs when this Court exercises power properly belonging to another branch. 11 Since the enactment of substantive law is the exclusive prerogative of the Legislature under our Constitu *28 tion, 12 substantive rules of law, therefore, “cannot originate from the judicial power to regulate practice and procedure in the courts.” 13 Accordingly, this Court does not have the power to adopt substantive law under the guise of enacting a procedural rule. 14

“Procedural law” consists of “[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” 15 A rule is procedural if it “really regulates procedure,- — the judicial process for enforcing rights and duties recognized by substantive law ....” 16 “Substantive law” is “[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of parties.” 17 Accordingly, as I see it, the dispositive issue is whether RCr 6.16 and 9.64 are procedural rules or substantive rules of law. If RCr 6.16 and 9.64 are substantive rules of law, they violate the separation of powers provisions of the Kentucky Constitution and thus are invalid.

II. NOLLE PROSEQUI

A “nolle prosequi” is “an entry made on the record, by which the prosecutor or plaintiff declares that he will proceed no further.” 18 It “may be entered as to an entire charging document, or one or more counts, or even a part of a count.” 19 “A nolle prosequi may be entered to a degree of an offense.” 20 Although the entry of a nolle prosequi results in the dismissal of a pending criminal charge, it does not operate as an acquittal of the defendant, and therefore, it may not bar a subsequent criminal prosecution. 21

Under the English common law, the Attorney General had the almost unfettered *29 right to enter a nolle prosequi, 22 “except that such power could not be exercised repeatedly without good and sufficient cause.” 23 The Attorney General alone 24 could nolle prosequi a criminal prosecution at any stage of the proceedings without leave of court or the defendant’s consent “before the jury [was] charged with the trial of the case, but leave of the court [was] required after the jury [had] been impaneled and sworn and before verdict.” 25 In other words, at common law, before the jury was sworn, “[t]he court’s function to enter a nolle prosequi on the rolls was purely ministerial.” 26

The Attorney General’s authority to nolle prosequi a criminal prosecution entered England’s common law in the sixteenth century, 27 and therefore, it became part of Kentucky’s common law:

*30 By an act of the Virginia convention of 1776 it was declared “that the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of King James I, and which are of a general nature, and not local to that kingdom .... shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of this colony.” (M. & B. Stat. 612.)

The present constitution provides, and previous constitutions in substance provided, that “all laws which on the first day of June, 1792, were in force in the state of Virginia, and which are of a general nature, and not local to that state, and not repugnant to this constitution, nor to the laws which have been enacted by the General Assembly of the commonwealth, shall be in force in this state until they shall be altered or repealed by the General Assembly.”

The Revised Statutes repealed certain statutes of Virginia and of England, as do the General Statutes, but neither repeals the common law of England.

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But only such principles and rules as constituted a part of the common law prior to the fourth year of the reign of James I are or ever were in force in this state. This is clearly implied in the act of 1776. To declare that the common law and statutes enacted prior to that time should be in force, was equivalent to declaring that no rule of the common law not then recognized and in force in England should be recognized and enforced here.

James I ascended the throne of England in 1603, March 24, and the fourth year of his reign commenced March 24, 1607, and when it is sought to enforce in this state any rule of English common law as such, independently of its soundness in principle, it ought to appear that it was established and recognized as the law of England prior to the latter date. 28

*31 This Court’s predecessor employed a similar analysis when faced with the issue of whether the English common-law writ of coram nobis, 29 which had fallen into disuse in the United States, was a part of Kentucky law. The Court held that because it had not been repealed by the Legislature, it remained available:

Section 233 of our Constitution preserves as a part of our system of laws all of those which were in force in the state of Virginia on the 1st day of June 1792, which are of a general nature and not local to that state, nor repugnant to our Constitution or laws enacted in pursuance thereto, “until they shall be altered or repealed by the General Assembly.” The common law of Virginia at that time (June 1, 1792) consisted of the common law of England and of acts of Parliament in aid of the common law prior to the fourth year of the reign of James I which were not peculiarly local to that kingdom, and, of course, such laws became the common law of this Commonwealth (Kentucky). So that we are convinced that the writ [of coram nobis] herein applied for became a part of our remedial law upon Kentucky’s admission into the Union, and, unless since repealed, it is yet available. 30

Like the writ of coram nobis, the almost unfettered right of the prosecutor to enter a nolle prosequi became part of the law of Kentucky upon its admission into the Union. 31 And, as a result, prosecutors in Kentucky, 32 like prosecutors in other states, 33 originally exercised the same un *32 fettered common-law power as England’s Attorney General to nolle prosequi a criminal case.

In 1854, however, the Kentucky Legislature enacted the Code of Practice in Civil and Criminal Cases (“1854 Code”), and although not abolishing the Commonwealth’s Attorney’s right to enter a nolle prosequi, the 1854 Code restricted the Commonwealth’s Attorney’s power by providing that an indictment may only be dismissed by “[t]he attorney of the commonwealth, with the permission of the court_” 34 Later, in 1873, the Legislature also enacted a statute (“1873 Statute”) that imposed an additional restriction upon the Commonwealth’s Attorney’s right to dismiss criminal prosecutions:

That hereafter, before the court shall permit any Commonwealth’s Attorney to dismiss any indictment or enter a nolle prosequi in any case, such attorney shall file a statement, in writing, setting forth the reasons for such dismissal or failure to prosecute, which statement shall be signed by said Commonwealth’s Attorney, and an order shall be made on the record-book of said court, and it shall remain with the papers of such prosecution as a part of the record. 35

Thus, with the Legislature’s adoption of Section 241 of the 1854 Code and its subsequent enactment of the 1873 Statute, the Commonwealth’s Attorney could only dismiss an indictment with permission of the court, and would only be permitted to do so upon reasons, stated in writing, signed by the Commonwealth’s Attorney, and deemed sufficient by the court. 36

In 1876, the Legislature enacted the Code of Practice in Criminal Cases (“Criminal Code”) and incorporated in Section 243 thereof the 1854 Code Section 241’s requirement that the Commonwealth’s Attorney secure the “permission of the court” before dismissing an indictment. 37 But, the Criminal Code was repealed “in its entirety” in 1962 38 with the *33 Legislature simultaneously “prescribing,” but not enacting as part of our statutory law, the Kentucky Rules of Criminal Procedure (“Criminal Rules”). 39

The majority opinion makes the untenable argument that the rules prescribed by the Legislature in 1962 were enacted as statutory law by the Legislature and have not been repealed. This is simply not correct. As Judge Palmore stated for a unanimous Court in Lunsford v. Commonwealth, 40 where our predecessor court addressed — like the majority opinion now does — the issue of whether one of the prescribed Criminal Rules could be validated as a legislative enactment:

Since Chapter 234, Acts of 1962, prescribed a complete set of Rules, including RCr 3.06, subject to revision by this court either before or after the effective date of the Act, we have considered whether RCr 3.06 can reasonably be validated as a legislative enactment, but have decided that it can not. Section 0 of the Act declared that the Rules were prescribed in accordance with the principle, finding and declaration contained in the preamble. The preamble expressed the primary purpose of keeping to the legislature those things that lie within the legislative power and leaving to the court those things that are within the judicial power, and an auxiliary purpose of prescribing ‘a better expression of current legislative policy for those matters in which both legislative and judicial discretion are involved.’ By specifically making the Rules prescribed in the Act subject to the rule-making authority of the Court of Appeals the General Assembly can have had no intention of doing more than expressing a policy of approval toward the Rules as prescribed in the Act itself. It is elementary, of course, that the General Assembly could not give the judiciary power to amend or repeal that which only the General Assembly could enact in the first instance. From this fundamental premise we deduce that the General Assembly did not in fact intend to ‘enact’ any of the Rules prescribed in the Act. See, for example, Section 60(2) of the Act, in which it is provided that in the event of a legislative amendment of any section of the Criminal Code which has been incorporated into the Rules, ‘it shall not be effective as a statute, but shall be construed as a concurrent resolution directed to the Court of Appeals.’ 41

Thus, contrary to the majority opinion, no legislative authority now exists for requiring the trial court’s approval of a prosecutor’s decision to amend or dismiss an indictment. Such authority was repealed in 1962. 42

The Criminal Rules prescribed by the Legislature, however, were “supersed[ed],” also in 1962, by our predecessor Court’s adoption of its Kentucky Rules of Criminal Procedure (also “Criminal Rules”). 43 *34 Rules 6.16 and 9.64 were identical under both versions of the Criminal Rules and remain substantially the same today. With the enactment of the judicial amendment to our Constitution, the Criminal Rules now exist solely by virtue of the rule making authority of this Court. 44 Unlike many other substantive provisions of the Criminal Code, the Legislature did not reenact Section 243 as part of the Kentucky Revised Statutes. 45 Presumably the original drafters of the Criminal Rules considered the matter procedural rather than substantive. 46

The 1873 Statute was recompiled several times, 47 finally as KRS 455.070, before it too was repealed in 1962. 48 Thus, after 1962, with the repeal of both the Criminal Code and KRS 455.070, no statutory authority restricted the common-law right of Commonwealth’s Attorneys to nolle prose-qui a criminal case. 49 As a consequence, the common-law rule was fully revived, 50 and Kentucky’s Commonwealth’s Attorneys were once again vested with the common-law right to dismiss a criminal case without first securing the trial court’s permission. 51

*35 The majority opinion, however, interprets RCr 9.64 as authorizing the trial court to deny the Commonwealth’s Attorney’s motion to dismiss a criminal prosecution if the dismissal is “clearly contrary to manifest public interest[,]” 52 and thus the rule restricts the Commonwealth’s Attorney’s common-law right to dismiss a criminal prosecution without the trial court’s consent. But such construction of RCr 9.64, in my opinion, makes it a substantive rule of law and a violation of the separation of powers provisions of Kentucky’s Constitution. Thus, it is constitutionally invalid.

In holding that RCr 9.64 does not violate the separation of powers requirement of our Constitution, the majority opinion analogizes RCr 9.64 to Federal Rule of Criminal Procedure 48(a) and, in so doing, relies primarily on United States v. Cow an., 53 In Cowan, the Court of Appeals held that Rule 48(a) did not violate the separation of powers requirement of the U.S. Constitution, 54 and therefore, it concluded that under Rule 48(a), a trial court in its discretion may deny a prosecutor’s motion to dismiss an indictment if the dismissal is “clearly contrary to manifest public interest.” 55 Regardless of whether this is a correct interpretation of federal law, 56 I do not find Rule 48(a) and Cowan supportive of the majority opinion’s position. The Cowan Court considered the Federal Rules of Criminal Procedure, including Rule 48(a), on equal footing with statutes *36 adopted by a legislative body. 57 Perhaps, the federal rules do have such status, 58 but Kentucky’s Criminal Rules do not. Thus, I find fault with the majority’s analogy.

The majority opinion cites the decision of the United States Supreme Court in Rinaldi v. United States 59 in support of Cowan’s holding — and thus supportive of the majority opinion’s position — that a trial court has discretion to reject the prosecution’s motion to dismiss a criminal charge if the dismissal is “clearly contrary to manifest public interest.” 60 I do not agree that Rinaldi supports Cowan’s holding. In the context of the language quoted from Rinaldi in the majority opinion, the Supreme Court only cited Cowan to show that it was the authority for the standard applied by the Court of Appeals in Rinal-di, but did not indicate its approval of the Cowan standard: “Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government’s decision to terminate this prosecution clearly disserved the public interest. United States v. Cowan, 524 F.2d 504, 513 (C.A.5 1975).” 61 In fact, the Rinaldi Court indicated later in the opinion that Rule 48(a)’s “leave of court” restriction was principally to protect a defendant against prosecutorial harassment— not from a dismissal “clearly contrary to manifest public interest” — and the Court explicitly declined to decide whether Rule 48(a) permits a trial court to deny a prosecutor’s motion to dismiss an indictment if the defendant has consented to the motion:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and recharging, ivhen the Government moves to dismiss an indictment over the defendant’s objection. See, e.g., United States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied, sub nom. Cox v. Hauberg, 381 U.S. 935 , 85 S.Ct. 1767 , 14 L.Ed.2d 700 (1965); Woodring v. United States, 311 F.2d 417, 424 (CA8), cert. denied sub nom. Felice v. United States, 373 U.S. 915, 83 S.Ct. 1301 , 10 L.Ed.2d 415 (1963). But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the *37 public interest. See United States v. Cowan, 524 F.2d 504 (C.A.5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33 , 497 F.2d 615, 620 (1973). It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same. 62

Thus, the majority opinion’s reliance upon Rinaldi is misplaced.

Under its exclusive power to enact substantive law, only the Legislature may properly take away, restrict, or assign common-law powers to executive constitutional officers without violating the Constitution. 63 This is particularly true as to Commonwealth’s Attorneys because under our Constitution the Legislature has the power to abolish the office. 64 Furthermore, only the Legislature has the authority to modify or repeal the English common law that has been adopted by our Constitutions. 65 Consequently, the Legislature, and only it, has the power to enact substantive law that restricts, takes away, or transfers the common-law authority of the Commonwealth’s Attorney.

RCr 9.64 is a rule pi'omulgated solely by this Court and its predecessor. It was not adopted under the aegis of the Legislature, and unlike Rule 48(a), it does not bear the imprimatur of the legislative branch. By vesting a trial court with the discretion to deny a Commonwealth’s Attorney’s motion to dismiss a criminal charge if the trial court determines that the dismissal is clearly contrary to manifest public interest, RCr 9.64 authorizes the substitution of a trial court’s judgment *38 for that of the Commonwealth’s Attorney and, therefore, is clearly a substantive rule of law. 66 In other words, as construed by the majority opinion, RCr 9.64 “does not enforce a right recognized by substantive law, but rather transfers discretion that was once wielded by ... [Commonwealth’s Attorneys] into judicial hands ....” 67 Thus, RCr 9.64, as interpreted, is clearly not a procedural rule, but a substantive rule of law, and therefore, its promulgation by this Court offends Sections 27 and 28 of our Constitution.

The majority opinion cites prior case law, former Criminal Code Section 243, and other prior legislative enactments in support of its holding that RCr 9.64 is a valid restriction on the Commonwealth’s Attorney’s common-law right to dismiss a criminal prosecution without the trial court’s consent. The majority opinion’s reliance is misplaced. As previously noted, both Section 243 and KRS 455.070 were repealed in 1962 and have not been reenacted by the Legislature. Accordingly, Section 243, KRS 455.070, other prior legislative enactments since repealed, or case law based on those enactments are not supportive of today’s holding by the majority opinion.

As construed by the majority opinion, RCr 9.64 invades the province of the Legislature and thus is invalid.

III. AMENDMENT OF INDICTMENT

I believe that the majority’s interpretation of RCr 6.16’s limitation on the Commonwealth’s Attorneys’ power to amend an indictment also violates the separation of powers provisions in our Constitution. A grand jury is charged with returning an indictment upon sufficient evidence, but once returned, the Commonwealth’s Attorney is responsible for its prosecution. 68 RCr 6.16, as interpreted by the majority opinion, i.e., the trial court may deny a motion by the Commonwealth’s Attorney to amend an indictment if the amendment is “clearly contrary to manifest public interest,” 69 improperly transfers to the judiciary the Commonwealth’s Attorneys’ prosecutorial discretion to amend an indictment to a lesser-included offense.

The grand jury represents the Commonwealth in making an investigation into a criminal charge and fulfills its duty with the completion of its investigation and the return of an indictment or of a report of no indictment to the court. 70 Once, an indictment is returned, the grand jury has no *39 further role in matter, and the Commonwealth’s Attorney becomes the exclusive representative of the Commonwealth in the indictment’s prosecution. 71 Thus, as the Commonwealth’s representative, the Commonwealth’s Attorney, not the judiciary, is properly vested with the discretion of determining whether to plea bargain, go to trial, or even dismiss the indictment. 72

Although at common law, an indictment could not be amended, 73 this was changed by a 1942 amendment to Criminal Code Section 126 so as to allow an amendment “in respect of any defect, imperfection or omission in the matter of form only.” 74 This leave to amend an indictment, however, was broadened considerably in 1962 with the adoption of the present Criminal Rules, “making substantial rights the criteria rather than the less significant matter of form.” 75 Accordingly, our rules authorize the Commonwealth’s Attorney to *40 amend indictments “any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” 76 RCr 6.16 places no other restrictions upon the Commonwealth’s Attorney’s authority to amend an indictment.

But, as interpreted by the majority opinion, RCr 6.16 violates the separation of powers provisions of our Constitution by authorizing the trial court to exercise discretion properly belonging to the Commonwealth’s Attorney, ie., whether to amend the indictment to a lesser-included offense. Thus, RCr 6.16 is invalid.

Regardless, one cannot convincingly argue that the defendant’s substantial rights are prejudiced when an indictment is amended to a lesser-included offense, particularly when the defendant consents to such an amendment. Furthermore, “lesser included offenses” are included in the greater indicted offense, 77 and just as a defendant may properly be convicted at trial of any lesser-included offense supported by the evidence without an amendment of the indictment, 78 a fortiori, with the consent of the Commonwealth’s Attorney, a defendant may plead guilty to a lesser-included offense without the necessity of an amendment of the indictment. 79 Accordingly, an amendment of the indictments was not necessary in order for the Appellants to plead to a lesser-included offense since the Appellants and the Commonwealth’s Attorney were in agreement.

IV. CONCLUSION

In Commonwealth v. Corey, 80 this Court held “that by virtue of RCr 8.08, and without regard to the wishes of the Common *41 wealth, a defendant has an absolute right to unconditionally plead guilty to the crime charged in the indictment ....” 81 Accordingly, with the Commonwealth’s Attorney’s consent, I believe that a defendant should have the right to plead guilty to a lesser-included offense of the crime charged in the indictment. After all, “[i]t ... [can] hardly be disputed that the Commonwealth’s Attorney is in charge of the prosecution of violations of criminal and penal laws and that plea bargaining is a part of the process.” 82 Here, the trial judge disagreed with the Commonwealth’s Attorney’s exercise of prosecutorial discretion and rejected the plea agreements because in his opinion the Commonwealth’s Attorney had entered into agreements that were “too lenient.” That is not the role assigned under our Constitution and statutes to the trial judge. To paraphrase Judge Posner, “[t]he judge thus is playing ... [Commonwealth’s Attorney]. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” 83 “Paradoxically, the plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches .... When a judge assumes the power to prosecute, the number shrinks to two.” 84 The majority opinion fails to realize that “[t]he judiciary cannot compel prosecutions ....” 85 “If it be said that this may leave society at the mercy of an unfaithful prosecuting attorney, the answer is that the power of control has been given him by statute, and for any neglect of duty not only is he answerable to the people, but may be proceeded against in the manner provided by law.” 86 Any restrictions on the powers of the Commonwealth’s Attorney must come from the Legislature, not this Court, but until it does so, Kentucky’s Commonwealth’s Attorneys retain the common law nolle prosequi power.

I will briefly summarize my position. Under Kentucky’s common law, even at a time when an indictment could not be amended, the Commonwealth’s Attorney had an almost unfettered right to dismiss (nolle prosequi) a criminal prosecution. This power was at one time restricted by legislative enactments that were repealed and replaced with RCr 9.64, a “procedural” rule promulgated by this Court and its predecessor. But RCr 9.64, as interpreted by the majority opinion, is invalid because it is a substantive rule of law and thus *42 violates the separation of powers provisions of the Kentucky Constitution. Accordingly, in the absence of legislative restriction, Commonwealth’s Attorneys once again have the common-law right to dismiss an indictment in whole or part, 87 regardless of past practices resulting from legislative enactments now repealed. 88 In other words, the repeal of statutes restricting the common-law rule fully revived the rule as it existed at common law. Therefore, I would interpret RCr 9.64 as vesting in the trial court only the discretion to require the prosecutor to state in writing the reasons for the dismissal if the defendant objects so as to prevent repeated dismissal of criminal charges without good cause. 89 I would interpret RCr 6.16 as it is plainly written, ie., authorizing the Commonwealth’s Attorney to amend an indictment “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” 90 Because Appellants’ pleas are to a lesser-included offense, however, I would hold that an amendment of the indictments is not necessary in this case.

For these reasons, I believe that the trial court is required to accept the Appellants’ pleas with these two qualifications: (1) under RCr 8.10, 91 the trial court is not bound by the Commonwealth’s Attorney’s sentencing recommendation, 92 and (2) before accepting the Appellants’ guilty pleas, the trial court must find that the pleas are made knowingly, intelligently, and voluntarily. 93 Therefore, I would issue a writ *43 directing the trial judge to accept the guilty pleas upon a finding that the pleas are made knowingly, intelligently, and voluntarily by Appellants. The trial court, however, may defer accepting the plea agreements as to the recommended sentences until after its consideration of the presentence reports. 94

STUMBO, J., joins this opinion, concurring in part and dissenting in part.

. Chamblee v. Rose, Ky., 249 S.W.2d 775 (1952).

. Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).

. Smothers v. Lewis, Ky., 672 S.W.2d 62, 64 (1984).

. Ky. Alcoholic Beverage Control Bd. v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 738 (1946).

. Legislative Research Comm’n v. Brown, Ky., 664 S.W.2d 907, 911-912 (1984).

. Id. at 912 .

. Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 699 (1994). Accord Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 580 (1948) (“It is essential that the sharp separation of the powers of government be preserved carefully by the courts. Those which are judicial must not be permitted to encroach upon those which are legislative.”).

. E. Ky. Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260 , 275 (1907).

. Smothers v. Lewis, Ky., 672 S.W.2d 62, 64 (1984) ("Section 116 of the Constitution of Kentucky's 'Judicial Article’ which was approved by the voters in 1976 provides that: 'The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction....’ Thus, the source of the Court’s rule making power is firmly rooted within the Constitution.”); O’Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 576 (1995) (“Kentucky Constitution Section 116 vests exclusive jurisdiction in the Supreme Court to prescribe 'rules of practice and procedure for the Court of Justice.' "); Huff v. Commonwealth, Ky., 763 S.W.2d 106, 108 (1988) (Gant, J., concurring) (“Section 109 provides that judicial power shall vest in the Supreme Court, and Section 116 empowers the Supreme Court to make all rules of practice and procedure.”).

. KY. CONST. § 116; Commonwealth v. Reneer, Ky., 734 S.W.2d 794, 796 (1987) (“The Supreme Court of this Commonwealth has the authority to prescribe rules of practice and procedure in the courts of this Commonwealth. Because K.R.S. 532.055 is a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution.” (citation omitted)).

. Prater v. Commonwealth, Ky., 82 S.W.3d 898, 907 (2002) ("No section of the Kentucky Constitution authorizes the judicial branch to exercise executive power if the executive is ‘along for the ride.’ ").

. KY. CONST. § 27; 16A AM. JUR. 2D Constitutional Law § 275 (1998) ("Legislative power includes the power to make laws....”); id. § 286 ("[W]hether legislative action is appropriate involves the distinction between substance, which is a legitimate subject of legislative action, and procedure, which is under the exclusive jurisdiction of the courts.”).

. Lunsford v. Commonwealth, Ky., 436 S.W.2d 512, 514 (1969).

. Richey v. Richey, Ky., 389 S.W.2d 914, 919 (1965) (“Rules of court are procedural. They cannot affect substantive law.”).

. BLACK'S LAW DICTIONARY 1221 (7th ed.1999).

. Sibbach v. Wilson & Co., 312 U.S. 1, 14 , 312 U.S. 655 , 61 S.Ct. 422, 426 , 85 L.Ed. 479 (1941).

. BLACK’S LAW DICTIONARY 1443 (7th ed.1999).

. 3 BOUVIER’S LAW DICTIONARY 2352 (3rd rev. 8th ed.1914); BLACK’S LAW DICTIONARY 1070 (7th ed.1999) ("1. A legal notice that a lawsuit has been abandoned. 2. A docket entry showing that the plaintiff or the prosecutor has abandoned the action”).

. Ward v. State, 290 Md. 76 , 427 A.2d 1008, 1012 (1981).

. Hook v. State, 315 Md. 25 , 553 A.2d 233, 238 (1989) (citation omitted).

. 22A C.J.S. Criminal Law § 419 (1989) (“The entry of a nolle prosequi, however, is not a final disposition of the case, and will not bar another prosecution for the same offense, but accused may be proceeded against for the same offense only under a new or different charging document or count.” (footnotes omitted)); 3 C.E. TORCIA, WHARTON’S CRIMINAL PROCEDURE § 445 (13th ed. Clark Boardman Callaghan 1991) [hereinafter “WHARTON'S CRIMINAL PROCEDURE”] ("A dismissal ... is not a bar to a subsequent prosecution for the same offense.” (footnotes omitted)); State v. Lomax, 712 S.W.2d 698, 699 (Mo.Ct.App.1986) (“After an order of nolle prosequi is filed, prosecution ceases. The charge may be brought again as long as the accused is not placed in double jeopardy. Jeopardy attaches in a jury trial when the jury has been impaneled and sworn.” (citation omitted)).

. Wells v. Miller, 300 Ky. 680 , 190 S.W.2d 41, 43 (1945) (" 'Under the common law of England before a jury is empaneled and even after the defendant is convicted, the Attorney General has the right to enter a nolle prosequi (citation omitted)); Commonwealth v. Wheeler, 2 Mass. 172, 174 (1806) ("I observe in the bar, the nolle prosequi is alleged to have been entered by the advice of the Court of Common Pleas. Certainly, the court ... [is] not legally competent to give any advice on this subject. The power of entering a nolle prosequi is to be exercised at the discretion of the attorney who prosecutes for the government, and for its exercise he alone is responsible.”); James L. Buchwalter, Annotation, Dismissal of state criminal charge in furtherance of, or in interest of, justice, 71 A.L.R.5th 1 § 2[a] (1999) ("At common law, the authority to dismiss a criminal charge was vested solely in the prosecutor and exercised through the mechanism of the nolle prose-qui.”).

. People ex rel. Elliott v. Covelli, 415 Ill. 79 , 112 N.E.2d 156, 160 (1953); Note, The Power of a Public Prosecutor to Dismiss a Prosecution, 35 L.R.A. 701 (1897) [hereinafter “Power of a Public Prosecutor to Dismiss a Prosecution ”] ("By the English practice the entry of a nolle prosequi was the prerogative of the attorney general to which there was no limitation except in case of injury from unlimited repetition.” (citation omitted)).

. Power of a Public Prosecutor to Dismiss a Prosecution, supra note 23. The exclusiveness of the Attorney General's nolle prosequi power is illustrated by an anecdote from the English common law recounted in Raymond Moley, The Vanishing Jury, 2 S. CAL. L. REV. 97, 98 n.4 (1928):

One Atkins having been committed for trial for seditious language, an associate of Atkins named Lacy appeared at the house of Chief Justice Holt and to see the great judge. The servant pleaded the ill health of his master and refused to admit Lacy who then said in a very solemn tone, "Acquaint your master that I must see him, for I bring him a message from the Lord God.”

This impressive message moved the Chief Justice to admit the visitor who thus addressed his host:

“I have come to you a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for John Atkins, his servant.”

"Thou art a false prophet and lying knave,” answered the Chief Justice, "If the Lord God has sent thee, it would have been to the Attorney General, for he knows that it belongeth not to the Chief Justice to grant a nolle prosequi. But I, as Chief Justice, can grant a warrant to commit thee to bear him company in prison.”

The Judge’s directions were followed and both the prophet and his friend were convicted and punished. 2 Campbell, Lives of the Chief Justices, 173.

. 22A C.J.S. Criminal Law § 420(c) (1989); WHARTON'S CRIMINAL PROCEDURE, supra note 21, § 445 ("A dismissal is ordinarily entered ... before the trial begins .... A dismissal may not be filed after the trial has begun except with the defendant's consent.” (footnote omitted)).

. Lomax, 712 S.W.2d at 700 (Pudlowski, J., concurring).

. State v. Jackson, 420 So.2d 320, 321 (Fla. Dist.Ct.App.1982) (citing Stretton & Taylor's Case, 1 Leon 119, 74 Eng. Rep. 111 (K.B. 1588), for the existence of nolle prosequi in the sixteenth century); Ward v. State, 290 Md. 76 , 427 A.2d 1008, 1012 (1981) ("Apparently the first reported case discussing the entry of *30 a nolle prosequi in a criminal prosecution was Stretton and Taylors Case, 1 Leon. 119, 74 Eng. Rep. 111 (K.B.1588), where the Attorney General entered a 'non vult prosequi' for purpose of preventing a private prosecution. Since that time, the nolle prosequi has been a means whereby the government exercises control over pending criminal cases.” (citations omitted)); Commonwealth v. Wheeler, 2 Mass. 172, 174 (1806) ("The practice of entering a nolle prosequi to informations is very ancient[.]”); Nolle Prosequi, 1958 CRIM. L. REV. 573, 574 (after noting that "[t]he Attorney General's power [to enter a nolle prosequi ] is of great antiquity!,]” states that nolle prosequi was established in 1555 when "an information [was] preferred against thirty-nine Members of Parliament!.]”).

. Ray v. Sweeney, 77 Ky. (14 Bush) 1, 5-6 (1878); accord KY. CONST. § 233 ("All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and which are of a general nature and not local to that State, and not repugnant to this Constitution, nor to the laws which have been enacted by the General Assembly of this Commonwealth, shall be in force within this State until they shall be altered or repealed by the General Assembly.”); Hilen v. Hoys, Ky., 673 S.W.2d 713, 715 (1984) ("This provision [Kentucky Constitution, Section 233] had the effect of adopting as the law of this state the common law of England that was part of the law of the State of Virginia at the time.” (citations omitted)); Jones v. Commonwealth, 269 Ky. 779 , 108 S.W.2d 816, 817 (1937), overruled on other grounds by Smith v. Buchanan, 291 Ky. 44 , 163 S.W.2d 5, 8 (1942) (holding that Kentucky’s present Constitution also preserved England’s common law prior to 1607 as part of Kentucky’s laws); Jenkins v. Berry, 119 Ky. 350 , 83 S.W. 594, 597 (1904) ("it was however held by this court ... that the statute of 43 Elizabeth was a part of the common law, and also of the general statutes in force in Virginia when Kentucky became a separate state, and, the latter state by her Constitution having adopted the laws of Virginia, it made that *31 statute part of the law of this state.”); Coleman v. O’Leary's Exr., 114 Ky. 388 , 70 S.W. 1068, 1071 (1902) (discussing whether “Elizabeth's statute” on charitable uses was adopted by Kentucky).

. "[Coram nobis] is an extraordinary and residual remedy to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were discovered after the rendition of the judgment without fault of the party seeking relief.” Harris v. Commonwealth, Ky., 296 S.W.2d 700, 701 (1956). CR 60.02 "abolishe[d] the 'writ of coram nobis,' and authorizes the granting of this type of relief by motion made under that Rule.” Id.

. See Jones, 108 S.W.2d at 817 (citations omitted).

. The unfettered right of the prosecutor to enter a nolle prosequi without the trial court’s consent was not abrogated in Virginia until 1803, which was more than ten (10) years after Kentucky's adoption of the laws in force in Virginia as of June 1, 1792. Anonymous, 3 Va. 139 , 1 Va.Cas. 139, 1803 WL 324 (Va. Gen.Ct.) (“The general court consisting of five judges, at the fall term of 1803, unanimously decided, 'that the district court attorney has not a right to enter a noli prosequi, in any case without the consent of the court first had.’ ”).

. Wells v. Miller, 300 Ky. 680 , 190 S.W.2d 41, 43 (1945) (" ‘As a general proposition in Kentucky, the Attorney General, and even the Commonwealth’s attorney and County attorneys exercised the same right as to nolle prosequi as did the Attorney General in England until the year 1873, when the Legislature by an Act approved April 9, 1873, imposed limitations upon both the Commonwealth's attorney and the County attorneys in their respective spheres of power to dismiss absolutely indictments and warrants charging defendants with other crimes or misdemeanors.” ’); Yocum v. Lolly, 40 Ky. (1 B.Mon.) 358, 359 (1841) (a civil case for malicious prosecution that was based on "the entry of a nolle prosequi, by the attorney for the Commonwealth.”); Wood v. Kendall, 30 Ky. (7 J.J.Marsh.) 212, 213 (1832) (although a civil case, the court refers to a nolle prosequi being entered in 1818 as to two of five defendants indicted for murder). Cf. Gen.Stat., ch. 5, Art. IV, § 1 p.185 (Bullitt & Feland 1888) [hereinafter “1873 Statute”] (imposed duty on Commonwealth's Attorneys to prosecute all criminal cases).

. WHARTON'S CRIMINAL PROCEDURE, supra note 21, § 445 ("The prosecutors in the United States came to exercise the same pow *32 er [as England’s -Attorney General])”; Comment, Criminal Law-Nolle Prosequi-Trial Court Has Power to Dismiss for Want of Prosecution: District of Columbia v. Weams (D.C.Ct.App.1965), 41 N.Y.U. L. REV. 996, 997 (1966) (“In the United States, although public officials conducted criminal prosecutions, courts held that the local public prosecutors had the same right to enter a nol pros as the Attorney General in England.” (footnote omitted)); Raymond Moley, The Vanishing Jury, 2 S. CAL. L. REV. 97, 98 (1928) ("The extreme decentralization of the administration of criminal justice in the United States threw this power [nolle prosequi] into the hands of every county prosecutor.”).

. M.C. JOHNSON, JAMES HARLAN, AND J.W. STEVENSON, CODE OF PRACTICE IN CIVIL AND CRIMINAL CASES § 241 (1854). Most jurisdictions enacted legislation or rules limiting the prosecutors’ absolute common-law power to enter a nolle prosequi. See WHARTON’S CRIMINAL PROCEDURE, supra note 21, § 445.

. 1873 Statute, supra note 32, § 1 p. 185.

. See Husbands v. Commonwealth, 143 Ky. 290 , 136 S.W. 632, 633 (1911) (where the court held that under Section 243 of the Criminal Code of Practice (the successor to Section 241 of the Code of Practice in Civil and Criminal Cases) and Section 123 of the Kentucky Statutes (the successor to the 1873 Statute), "the commonwealth’s attorney can only dismiss an indictment with permission of the court, and will only be permitted to do so upon reasons, stated in writing, signed by him, [and] deemed sufficient by the court”); cf. Dilger v. Commonwealth, 88 Ky. 550 , 11 S.W. 651, 652 (1889) (where the court stated that the statute "was enacted because of the improper dismissal of indictments in some of the courts, and is merely directory”).

. Code of Practice in Criminal Cases, § 243 (1876) (repealed 1962, effective January 1, 1963), reprinted in CARROLL’S KENTUCKY CODES (1948 revision) [hereinafter "Criminal Code”].

. 1962 Ky. Acts ch. 234, § 61(2) ("The Code of Practice in Criminal Cases is repealed in its entirety.").

. 1962 Ky. Acts ch. 234, preamble, § 0 (recognizing the “merit of having procedural rules promulgated by the department responsible for their proper functioning”).

. Ky., 436 S.W.2d 512 (1969).

. Id. at 514 (emphasis added).

. Id.; 1962 Ky. Acts, ch. 234 § 61("(1) The following sections and subsections of the Kentucky Revised Statutes are repealed: 455.070 .... (2) The Code of Practice in Criminal Cases is repealed in its entirety.”).

.Ky. Rules of Criminal Procedure, Court of Appeals of Kentucky, Order Adopting Kentucky Rules of Criminal Procedure, entered November 16, 1962 (“It is ordered that the Kentucky Rules of Criminal Procedure attached hereto ... be and they are adopted, effective January 1, 1963, superseding the rules set forth in Section 0, Chapter 234, Acts of 1962.”).

. KY. CONST. § 116.

. Lunsford, 436 S.W.2d at 514 .

. Id. (where the drafters of the criminal rules incorrectly assume another matter as procedural rather than substantive).

. Carroll's Kentucky Statutes § 123; 1942 Ky. Acts ch. 208, § 1.

. 1962 Ky. Acts ch. 234, § 61(1).

. The legislature presumed, albeit incorrectly, that the right of the Commonwealth’s Attorney to dismiss an indictment was procedural. Lunsford, 436 S.W.2d at 513 ("The object of Chapter 234, Acts of 1962, was to remove from the body of statutory law all matters within the scope of judicial rule-making.”).

. 73 AM. JUR. 2D Statutes § 271 (2004) ("It is a general principle that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement.” (footnote omitted)); U.S. Fidelity & Guar. Co. v. Steele, 241 Ky. 848 , 45 S.W.2d 469, 470 (1932) (holding that where an amending act only adds an additional provision to a previous act the repeal of the amending act leaves the previous act in force as before amendment); see also Beavan v. Went, 155 Ill. 592 , 41 N.E. 91 , 93-94 (1895) ("It is a rule of the common law that, where one statute is repealed by another, the repeal of the repealing statute revives the statute repealed; and the same rule is held to extend to the common law, so that, where an act which supersedes in any particular the common-law rule previously applicable is itself repealed, the rule is held to be revived.”); State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137 , 107 S.E.2d 353 , 357 (1959) ("When a statute repeals the common law and the statute itself is subsequently repealed, the common law is revived and when a statute which is declaratory of the common law is repealed the common law remains in force for the reason that the statute was an affirmance of the common law.”); KRS 446.100 (regarding revival of statute once repealing statute is repealed).

.In re Richards, 213 F.3d 773, 782-83 (3d Cir.2000) ("The contention that the Territorial Court usurped power in not dismissing the charges against Richards is founded on the venerable common law doctrine of nolle pro-sequi. Under this doctrine, prosecutors have the power to decide whether to proceed with the prosecution of a charged defendant. Absent a controlling statute or rule to the contrary, this power resides solely in the prosecutor's hands until the impanelment and swearing of a jury.... Of course, the Virgin Islands legislature could enact a law or rule to alter or eradicate the nolle prosequi power. Until it does so, however, local prosecutors retain the common law nolle prosequi power.”); State v. Jackson, 420 So.2d 320, 322 (Fla.Dist.Ct.App.1982) ("In the absence of statute, the common law continues to be in force in most of the states of this country.”); Pryor v. Thomas, Ky., 361 S.W.2d 279, 280 (1962) ("it has long been accepted by the bench and bar that the common law prevails *35 unless changed by our constitution or statutes.”); Commonwealth v. Kindness, 247 Pa.Super. 99 , 371 A.2d 1346, 1349 (1977) ("The authorities are virtually unanimous that the historical power to 'nol pros' belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary.”); State v. Anderson, 119 Tex. 110 , 26 S.W.2d 174, 176 (Com.App.1930) (" 'At common law, the matter of entering a nolle prosequi rests entirely within the discretion of the prosecuting officer and leave of court is not necessary; and by the weight of authority, this is still the rule in the absence of a statute where the entry is before the trial begins.' " (citation omitted)); 3 WHARTON’S CRIMINAL LAW § 61 (15th ed. 2003) ("In some jurisdictions, prosecutors still possess, as at common law, the absolute power to enter a nolle prosequi.” (citation omitted)); Comment, Criminal Law-Nolle Prosequi-Trial Court Has Power To Dismiss FOR Want OF Prosecution: District of Columbia v. Weams (D.C.Ct.App.1965), 41 N.Y.U. L. REV. 996, 998 (1966) ("American courts have consistently held that absent ... a statute the prosecutor’s control of the nolle is absolute.” (footnote omitted)); Carol H. Lesnek, Criminal Law-Binding Effect of Prosecutor's Agreement to Dismiss Prosecution, 23 WAYNE L. REV. 1129, 1131 (1976-1977) ("In the absence of statute, most jurisdictions follow the common law rule that the prosecutor has complete authority to control the entry of nolle prosequi until a jury is sworn, and he may thus be able independently to negotiate binding agreements in such jurisdictions. However, when a statute requires court approval before criminal charges may be dismissed, an agreement to dismiss may be equally subject to court sanction.” (footnotes omitted)).

. Hoskins v. Maricle, Ky., 150 S.W.3d 1, 20 , 2004 WL 1906855 (2004).

. 524 F.2d 504 (5th Cir.1975).

. Id. at 512 .

. Id. at 513 .

. Compare In re Richards, 213 F.3d 773, 787 (3d Cir.2000) ("If one adheres to the view that Rule 48(a) exists solely to prevent harassment of a defendant, then the Territorial Court may have exceeded its authority in not promptly dismissing the case against Richards.”), and In re United States, 345 F.3d 450, 453 (7th Cir.2003) ("[I]t is hard to see ... how [a judge] could properly refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting in bad faith or contrary to the public interest.”).

. Cowan, 524 F.2d at 505 .

. See In re Richards, 213 F.3d 773, 785-786 (3d Cir.2000) ("One possible route out of this conundrum is to argue that whatever substantive effect the Rule possesses emanates from Congress because the Rules Enabling Act contains a procedure through which proposed new rules are submitted to Congress and require at least a seven-month delay before they can take effect, thus providing some check on Congress's potential delegation of its substantive lawmaking authority to the judiciaiy. In contrast, no similar mechanism exists in the Virgin Islands. But this argument is unsatisfactory. The Rules Enabling Act's provision for submission to Congress does not give Congress any authority that it does not already have. Congress can always vote to abrogate a rule promulgated by the judiciary. Neither the delay in the rules' taking effect nor the submission to Congress requirement creates a veto by silence. Congress must affirmatively legislate to obviate a properly submitted rule.” (citation and footnote omitted)).

. 434 U.S. 22 , 98 S.Ct. 81 , 54 L.Ed.2d 207 (1977) (per curiam).

. Hoskins v. Maricle, Ky., 150 S.W.3d 1, 20 , 2004 WL 1906855 (2004).

. Rinaldi, 434 U.S. at 29 , 98 S.Ct. 81 (emphasis added).

. Rinaldi, 434 U.S. at 30, n. 15 , 98 S.Ct. 81 (emphases added); accord In re: United States, 345 F.3d 450, 452-53 (7th Cir.2003) ("But the purpose, at least the principal purpose, is to protect a defendant from the government’s harassing him by repeatedly filing charges and then dismissing them before they are adjudicated.”).

. McClure v. Augustus, Ky., 85 S.W.3d 584, 586 (2002) ("[T]he General Assembly may take common-law powers away from executive constitutional officers and assign them to different executive officers or agencies without violating the constitution .... ”); Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 749 (1930) ("That the Legislature may annex additional duties to a constitutional office, or confer powers upon a constitutional officer other than those expressly prescribed by the Constitution, unless inhibited from so doing by that instrument, is everywhere recognized and practiced in this and other jurisdictions, illustrations of which in this state are to be found from time to time since the creation of the commonwealth."); Holsclaw v. Stephens, Ky., 507 S.W.2d 462, 469 (1973) ("Our State Constitution is a limitation upon the exercise of power rather than a grant of any specific power to the legislature. The legislature may enact any law which is not expressly or impliedly prohibited by the Constitution of the United States or the Constitution of Kentucky.”); Dalton v. State Prop. and Bldgs. Comm’n, Ky., 304 S.W.2d 342, 357 (1957) ("Under the principle of separation of governmental powers, the legislative power of the state is vested in the state legislature, our General Assembly. The power of the legislature is derived from the people through the Constitution. It is a generally recognized and oft repeated principle that except where limitations have been imposed, either by the federal or state constitution, the power of the state legislature is unlimited and practically absolute, covering the whole range of legitimate legislation. Such is the authority conferred upon the General Assembly by the people of the Commonwealth under our Constitution since 1850.” (citation omitted)).

. KY. CONST. § 97; Hancock v. Schroering, Ky., 481 S.W.2d 57, 60 (1972) ("The office of Commonwealth's attorney is also created by the Kentucky Constitution with the proviso that it may be abolished by the legislature.”).

. Ky. Const. § 233; Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829 , 165 S.W.2d 820, 828 (1942) ("Section 233 of the Constitution logically gives the general assembly plenary power to abrogate or modify the common law.”).

. In re Richards, 213 F.3d 773, 784 (3d Cir.2000) ("By commanding and empowering a court to determine whether the dismissal of a prosecution would be in the public interest and the interest of justice, ... [the court rule] licenses the substitution of ... the [trial court’s] judgment for that of the prosecutor. This is not, therefore, a rule of practice and procedure’ within the scope of the local courts' rulemaking ability ..., but a substantive rule of law.”).

. Id.

. Hancock v. Schroering, Ky., 481 S.W.2d 57, 60 (1972) ("By legislative delegation, the Commonwealth's attorney is charge[d] with the responsibility of prosecuting all violations of the criminal and penal laws of the Commonwealth.” (citation omitted)).

. Hoskins v. Maricle, Ky., 150 S.W.3d 1, 24 , 2004 WL 1906855 (2004).

. RCr 5.02 ("The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment of information has not been filed, or other offenses which come to their attention or of which any of them has knowledge.”); RCr 5.10 ("The grand jurors shall find an indictment where they have received what they believe to be sufficient evidence to support it ....”); RCr 5.22(1) ("If the defendant has been held to answer and the votes of the grand jurors are insufficient in number to find an indictment, the foreperson shall so report forthwith to the circuit court in writing.”).

. Hancock, 481 S.W.2d at 60 ; KRS 69.010(1) ("[T]he Commonwealth’s attorney shall ... attend to all civil cases and proceedings in which the Commonwealth is interested in the Circuit Courts of his judicial circuit.”).

. See Flynt v. Commonwealth, Ky., 105 S.W.3d 415, 424-425 (2003) (“It is manifest that the prosecution of crime is an executive function and that 'the duty of the executive department is to enforce the criminal laws.' Although it is beyond dispute that the executive branch’s prosecutorial function includes 'the decision whether or not to prosecute, and what charge to file or bring before a grand juiy,’ it is argued in favor of Appellee Elliott's interpretation of KRS 533.250(2) that, after the grand jury returns an indictment, the disposition of a criminal matter is exclusively a judicial function. We observe, however, that this view of the scope of prosecutorial authority is contradicted not only by established understandings of this authority, but also by Kentucky statutory law and the precedent of this Court and its predecessor.” (footnotes omitted)); id. at 425 ("And, because prosecutors have the sole discretion whether to engage in plea bargaining with a defendant, this court and its predecessor have held that, unless the Commonwealth consents, courts cannot: (1) accept pleas of guilty and unilaterally limit the sentences which may be imposed; (2) amend a charge prior to the presentation of evidence; or (3) dismiss a valid indictment ....’’ (footnotes omitted)); Commonwealth v. Cundiff, 149 Ky. 37 , 147 S.W. 767, 768 (1912) ("A prosecution by indictment is a litigation in which the state is plaintiff or complainant, and is represented by the commonwealth’s attorney. The judge does not represent the state any more than he does the defendant in the prosecution. His right to control the prosecution goes only to the extent of determining whether or not the indictment is good on demurrer.”).

. B.H. Glenn & C.C. Marvel, Annotation, Comment Note — Power of court to make or permit amendment of indictment, 17 A.L.R.3d 1181 , § 2 (2004) ("At common law the requirement that an accused could be held to answer for a serious offense only on the presentment or indictment of a grand jury was generally held to preclude the amendment of an indictment by the court.”); 1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE § 127 ("The federal courts continue to adhere to the historic rule that an indictment may not be amended.”).

. 1942 Ky. Acts ch. 142, § 5; Criminal Code, supra note 37, § 126(5); see also International Shoe Co. v. Commonwealth, 300 Ky. 806 , 190 S.W.2d 553, 554 (1945) ("It is obvious, from the language of the section, that it was not the intention of the Legislature to permit the Commonwealth's Attorney to amend an indictment by supplying substantial averments omitted by the Grand Jury.”).

. RCr 6.16, unofficial comments (1962); accord Brown v. Commonwealth, Ky., 378 S.W.2d 608, 610 (1964), overruled on other grounds by Payne v. Commonwealth, Ky., 656 S.W.2d 719 (1983) ("Under the former Criminal Code of Procedure, an amendment to include such an essential averment as the one in question would have been impossible, as only amendments as to form were permissible. However, the new Rules of Criminal Procedure are broader in this area. RCr 6.16 states: 'The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of *40 the defendant are not prejudiced.’ This rule is based on Federal Criminal Rule 7(e) but is less restricted. The federal rule allows only an information to be so amended, restricting any amendment of the indictment to the grand jury.”).

. RCr 6.16.

. Cody v. Commonwealth, Ky., 449 S.W.2d 749, 751 (1970) ("A defendant may be convicted of the crime stated in the indictment and all other crimes growing out of the same act of a lower degree. This is a well-established general rule.” (citation omitted)); Commonwealth v. Couch, 32 Ky. L. Rptr. 638 , 106 S.W. 830 (1908) ("The indictment is for murder, and under this indictment the defendant may be prosecuted for any degree of homicide, to wit, murder and voluntary or involuntary manslaughter.” (citation omitted)).

. See 1 WILLIAM S. COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 1.05 (4th ed. Anderson 1993 ); KRS 505.020(2) ("A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when: (a) It is established by proof of the same or less than all of the facts required to establish the commission of the offense charged ....”); see also KRS 505.020 Kentucky Crime Commission/LRC Commentary (1974) ("[Subsection (2)] provide[s] ... the circumstances under which conviction of an offense not expressly named in the charging instrument is appropriate.”).

. Black v. State, 586 So.2d 968, 970 (Ala.Crim.App., 1991) ("The principle is well settled that 'an indictment charging a felony or the highest grade of the offense by operation of law charges every lesser offense included in the one charged.’ The concept of a lesser included offense does not involve either an amendment of the indictment or a variance between the pleading and the proof.” (citation omitted)); cf. State v. Harden, 506 So.2d 1265 , 1271 n. 4 (La.Ct.App.1987) (relying on rule that allows "[t]he defendant, with the consent of the district attorney, [to] plead guilty [to] a lesser offense that is included in the offense charged in the indictment[,]” the court held "that an amendment to the indictment ... was not necessary as manslaughter, to which the district attorney agreed to permit the defendant to plead, is a lesser and included crime of first degree murder for which the defendant was indicted.” (citation omitted)).

. Ky., 826 S.W.2d 319 (1992).

. Id. at 321 .

. Id. (citation omitted). Prior to the passage of the judicial amendment, our Constitution required that "[a]ll prosecutions shall be carried on in the name and by the authority of the ‘Commonwealth of Kentucky,’ and conclude against the peace and dignity of the same.” ’ KY. CONST. § 123 (repealed 1976).

. In re United States, 345 F.3d 450, 453 (7th Cir.2003).

. Id. at 454 .

. United States v. Martin, 287 F.3d 609, 623 (7th Cir.2002); accord In re Richards, 213 F.3d 773, 785 (3d Cir.2000) ("[T]here is likely little a court can do to compel action even if it denies a Rule 48(a) motion. Even if we were to uphold the Territorial Court’s failure to grant the motion to dismiss, therefore, that court would seem to have few options if the day of trial came, and the prosecution refused to call witnesses or otherwise go forward with its case. The substantive bite of the rule, therefore, appears to be hampered by the dullness of its teeth.” (citation omitted)).

.Commonwealth v. Euster, 237 Ky. 162 , 35 S.W.2d 1, 3 (1931); Adkins v. Commonwealth, 232 Ky. 312 , 23 S.W.2d 277, 279 (1929) (holding that exercise of lawful authority by one within executive branch was not subject to interference by judiciaiy even in case of gross abuse).

. See supra notes 47, 48.

. See In re Richards, 213 F.3d 773, 785 (3d Cir.2000) ("[I]f Rule 48(a) cannot be promulgated by a Virgin Islands court, past practices to the contrary are irrelevant.”).

. Cf. In re Richards, 213 F.3d at 788 ("We conclude that the Territorial Court’s mere effort to obtain information surrounding the prosecution's attempted dismissal of Richards's information does not suffice to work a substantive change in the prosecution’s power of nolle prosequi. ”).

. RCr 6.16.

. RCr 8.10 provides:

At any time before judgment the court may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted.

If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in that guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

The court can defer accepting or rejecting the plea agreement until there has been an opportunity to consider the presentence report.

. Matheny v. Commonwealth, Ky., 37 S.W.3d 756, 759 (2001) (quoting Misher, 576 S.W.2d at 241) ("For guidance to the bench and bar, we set forth the preferred procedure a trial court should follow when accepting a guilty plea that is made pursuant to a plea agreement .... 'The sentencing court should merely accept the plea, note the recommendation or agreement concerning sentence, and set a day certain for sentencing. No sentencing at all should be carried out until KRS 532.050 has been complied with.’ "); Misher v. Commonwealth, Ky.App., 576 S.W.2d 238, 241 (1978) ("The sentencing function of our courts on pleas of guilty is carried out by the judge. While the prosecutor and defense counsel, along with the defendant, may discuss and negotiate, they cannot impose sentence by agreement.”).

. Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); RCr 8.08 ("The court ... shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”).

. RCr 8.10; Misher, 576 S.W.2d at 241 . ("The sentencing court should merely accept the plea, note the recommendation or agreement concerning sentence, and set a day certain for sentencing. No sentencing at all should be carried out until KRS 532.050 has been complied with.”).