439.265 Shock probation in felony conviction -- Procedure -- Exclusions -- Comprehensive sex offender presentence evaluation -- Exercise of authority

439.265 Shock probation in felony conviction -- Procedure -- Exclusions --

Comprehensive sex offender presentence evaluation -- Exercise of authority.

(1) Subject to the provisions of KRS Chapter 439 and Chapters 500 to 534, any Circuit

Court may, upon motion of the defendant made not earlier than thirty (30) days nor

later than one hundred eighty (180) days after the defendant has been incarcerated in

a county jail following his conviction and sentencing pending delivery to the

institution to which he has been sentenced, or delivered to the keeper of the

institution to which he has been sentenced, suspend the further execution of the

sentence and place the defendant on probation upon terms the court determines.

Time spent on any form of release following conviction shall not count toward time

required under this section.

(2) The court shall consider any motion filed in accordance with subsection (1) of this

section within sixty (60) days of the filing date of that motion, and shall enter its

ruling within ten (10) days after considering the motion. The defendant may, in the

discretion of the trial court, have the right to a hearing on any motion he may file, or

have filed for him, that would suspend further execution of sentence. Any court

order granting or denying a motion to suspend further execution of sentence is not

reviewable.

(3) (a) During the period in which the defendant may file a motion pursuant to this

statute, the sentencing judge, within his or her discretion, may order that the

defendant be held in a local detention facility that is not at or above maximum

capacity until such time as the court rules on said motion. During this period

of detention, and prior to the court's ruling on said motion, the court may

require the defendant to participate in any approved community work program

or other forms of work release. Persons held in the county jail pursuant to this

subsection shall not be subject to transfer to a state correctional facility until

the decision is made not to place the petitioner on shock probation.

(b) The provisions concerning community work programs or other forms of work

release shall apply only to persons convicted of Class C or Class D felonies,

and may be granted only after a hearing at which the Commonwealth's

attorney has the opportunity to present arguments in favor or opposition

thereto.

(4) (a) If the defendant is a violent offender as defined in KRS 439.3401, the

sentence shall not be probated under this section.

(b) The sentence shall not be probated under this section if the defendant has been

convicted of:

1. A violation of either KRS 507.040 or 507A.040 and a violation of KRS

189A.010 arising out of the same incident; or

2. A violation of either KRS 507.050 or 507A.050 and a violation of KRS

189A.010 arising out of the same incident.

(5) If the defendant has been convicted of an offense under KRS 510.050, 510.080,

530.020, 530.064(1)(a), or 531.310, or criminal attempt to commit any of these

offenses under KRS 506.010, the sentence shall not be suspended, in accordance

with KRS 532.045.

the same incident; or

2. A violation of either KRS 507.050 or 507A.050 and a violation of KRS

189A.010 arising out of the same incident.

(5) If the defendant has been convicted of an offense under KRS 510.050, 510.080,

530.020, 530.064(1)(a), or 531.310, or criminal attempt to commit any of these

offenses under KRS 506.010, the sentence shall not be suspended, in accordance

with KRS 532.045.

(6) When a defendant has been convicted of a sex crime, as defined in KRS 17.500, the

court shall order a comprehensive sex offender presentence evaluation, unless one

has been provided within the past six (6) months, in which case the court may order

an update of the comprehensive sex offender presentence evaluation of the

defendant conducted by the sex offender treatment program operated or approved

by the Department of Corrections or the Sex Offender Risk Assessment Advisory

Board. The comprehensive sex offender presentence evaluation shall provide to the

court a recommendation related to the risk of a repeat offense by the defendant and

the defendant's amenability to treatment, and shall be considered by the court in

determining whether to suspend the sentence. If the court suspends the sentence and

places the defendant on probation, the provisions of KRS 532.045(3) to (7) shall

apply.

(7) The authority granted in this section shall be exercised by the judge who imposed

sentence on the defendant, unless he is unable to act and it appears that his inability

to act should continue beyond the expiration of the term of the court. In such case,

the judge who imposed sentence shall assign a judge to dispose of a motion filed

under this section, or as prescribed by the rules and practices concerning the

responsibility for disposition of criminal matters.

(8) The provisions of this section shall not apply where a sentence of death has been

imposed.