KRS 532.080: Persistent felony offender sentencing.

(1) When a defendant is found to be a persistent felony offender, the jury, in lieu of the

sentence of imprisonment assessed under KRS 532.060 for the crime of which the

defendant presently stands convicted, shall fix a sentence of imprisonment as

authorized b y subsection (5) or (6) of this section. When a defendant is charged

with being a persistent felony offender, the determination of whether or not he or

she is such an offender and the punishment to be imposed pursuant to subsection (5)

or (6) of this secti on shall be determined in a separate proceeding from that

proceeding which resulted in his or her last conviction. The proceeding shall be

conducted before the court sitting with the jury that found the defendant guilty of

his or her most recent offense un less the court for good cause discharges that jury

and impanels a new jury for that purpose.

(2) A persistent felony offender in the second degree is a person who is more than

twenty-one (21) years of age and who stands convicted of a felony after having

been convicted of one (1) previous felony. As used in this provision, a previous

felony conviction is a conviction of a felony in this state or conviction of a crime in

any other jurisdiction provided:

(a) That a sentence to a term of imprisonment of one (1 ) year or more or a

sentence to death was imposed therefor; and

(b) That the offender was over the age of eighteen (18) years at the time the

offense was committed; and

(c) That the offender:

1. Completed service of the sentence imposed on the previous fel ony

conviction within five (5) years prior to the date of commission of the

felony for which he or she now stands convicted;

2. Was on probation, parole, postincarceration supervision, conditional

discharge, conditional release, furlough, appeal bond, or a ny other form

of legal release from any of the previous felony convictions at the time

of commission of the felony for which he or she now stands convicted;

3. Was discharged from probation, parole, postincarceration supervision,

conditional discharge, con ditional release, or any other form of legal

release on any of the previous felony convictions within five (5) years

prior to the date of commission of the felony for which he or she now

stands convicted;

4. Was in custody from the previous felony conviction at the time of

commission of the felony for which he or she now stands convicted; or

5. Had escaped from custody while serving any of the previous felony

convictions at the time of commission of the felony for which he or she

now stands convicted.

(3) A persistent felony offender in the first degree is a person who is more than twenty -

one (21) years of age and who stands convicted of a felony after having been

convicted of two (2) or more felonies, or one ( 1) or more felony sex crimes against

a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more

felonies. As used in this provision, a previous felony conviction is a conviction of a

felony in this state or conviction of a crime in any other jurisdiction provided:

(a) That a sentence to a term of imprisonment of one (1) year or more or a

sentence to death was imposed therefor;

(b) That the offender was over the age of eighteen (18) years at the time the

offense was committed; and

(c) That the offender:

1. Completed service of the sentence imposed on any of the previous

felony convictions within five (5) years prior to the date of the

commission of the felony for which he or she now stands convicted;

2. Was on probation, parole, postinc arceration supervision, conditional

discharge, conditional release, furlough, appeal bond, or any other form

of legal release from any of the previous felony convictions at the time

of commission of the felony for which he or she now stands convicted;

3. Was discharged from probation, parole, postincarceration supervision,

conditional discharge, conditional release, or any other form of legal

release on any of the previous felony convictions within five (5) years

prior to the date of commission of the felon y for which he or she now

stands convicted;

4. Was in custody from the previous felony conviction at the time of

commission of the felony for which he or she now stands convicted; or

5. Had escaped from custody while serving any of the previous felony

convictions at the time of commission of the felony for which he or she

now stands convicted.

(4) For the purpose of determining whether a person has two (2) or more previous

felony convictions, two (2) or more convictions of crime for which that person

served concurrent or uninterrupted consecutive terms of imprisonment shall be

deemed to be only one (1) conviction, unless one (1) of the convictions was for an

offense committed while that person was imprisoned.

(5) A person who is found to be a persistent felo ny offender in the second degree shall

be sentenced to an indeterminate term of imprisonment pursuant to the sentencing

provisions of KRS 532.060(2) for the next highest degree than the offense for

which convicted. A person who is found to be a persistent felony offender in the

second degree shall not be eligible for probation, shock probation, or conditional

discharge, unless all offenses for which the person stands convicted are Class D

felony offenses which do not involve a violent act against a person, in which case

probation, shock probation, or conditional discharge may be granted. A violent

offender who is found to be a persistent felony offender in the second degree shall

not be eligible for parole except as provided in KRS 439.3401.

(6) A person who is found to be a persistent felony offender in the first degree shall be

sentenced to imprisonment as follows:

(a) If the offense for which he or she presently stands convicted is a Class A or

Class B felony, or if the person was previously convicted of o ne (1) or more

sex crimes committed against a minor as defined in KRS 17.500 and presently

stands convicted of a subsequent sex crime, a persistent felony offender in the

first degree shall be sentenced to an indeterminate term of imprisonment, the

maximum of which shall not be less than twenty (20) years nor more than

fifty (50) years, or life imprisonment, or life imprisonment without parole for

twenty-five (25) years for a sex crime committed against a minor;

(b) If the offense for which he or she presen tly stands convicted is a Class C or

Class D felony, a persistent felony offender in the first degree shall be

sentenced to an indeterminate term of imprisonment, the maximum of which

shall not be less than ten (10) years nor more than twenty (20) years.

(7) A person who is found to be a persistent felony offender in the first degree shall not

be eligible for probation, shock probation, or conditional discharge, unless all

offenses for which the person stands convicted are Class D felony offenses which

do not involve a violent act against a person or a sex crime as that term is defined in

KRS 17.500, in which case, probation, shock probation, or conditional discharge

may be granted. If the offense the person presently stands convicted of is a Class A,

B, or C felony, the person shall not be eligible for parole until the person has served

a minimum term of incarceration of not less than ten (10) years, unless another

sentencing scheme applies. A violent offender who is found to be a persistent

felony offender in the first degree shall not be eligible for parole except as provided

in KRS 439.3401.

(8) A conviction, plea of guilty, or Alford plea under KRS 218A.1415 shall not trigger

the application of this section, regardless of the number or type of prior felon y

convictions that may have been entered against the defendant. A conviction, plea of

guilty, or Alford plea under KRS 218A.1415 may be used as a prior felony offense

allowing this section to be applied if he or she is subsequently convicted of a

different felony offense.

(9) The provisions of this section amended by 1994 Ky. Acts ch. 396, sec. 11, shall be

retroactive.

(10) (a) Except as provided in paragraph (b) of this subsection, this section shall not

apply to a person convicted of a criminal offense if the penalty for that offense

was increased from a misdemeanor to a felony, or from a lower felony

classification to a higher felony classification, because the conviction

constituted a second or subsequent violation of that offense.

(b) This subsection s hall not prohibit the application of this section to a person

convicted of:

1. A felony offense arising out of KRS 189A.010, 189A.090, 506.140,

508.032, 508.130, or 510.015; or

2. Any other felony offense if the penalty was not enhanced to a higher

level b ecause the Commonwealth elected to prosecute the person as a

first-time violator of that offense.