ZACCHEUS MILLER v. COMMONWEALTH (2026)

OPINION

This case involves the issue of the timeliness of the filing of a motion for shock probation. Appellant, Jennifer Zaccheus-Miller, challenges the trial court's determination that it lacked jurisdiction to consider her motion for shock probation on the merits because the motion was untimely filed. After our review, we affirm.

Zaccheus-Miller pled guilty to and was convicted of two Class C felonies for Theft by Unlawful Taking. She was sentenced to six years in prison and was ordered to pay restitution. On April 16, 2025, the trial court entered Judgment and Sentence, and Zaccheus-Miller was immediately remanded to custody.

On October 14, 2025, Zaccheus-Miller, by counsel, filed a motion for shock probation pursuant to KRS ¹ 439.265. In relevant part, the statute provides:

(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․

The motion was heard on November 19, 2025. By Order entered on December 8, 2025, the court determined that it did not have jurisdiction to consider the merits because the motion had been untimely filed. The court explained as follows:

[A]fter a sentencing hearing on April 16, 2025, the Defendant was remanded to the Department of Corrections to commence serving her sentences. The Judgment and Sentence was signed on April 16, 2025, and entered by the Circuit Court Clerk on April 17, 2025. The motion was filed on October 14, 2025. One hundred and eighty days from April 16, 2025, is October 13, 2025.

In Terhune v. Commonwealth, 907 S.W.2d 779, 782 (Ky. App. 1995), the Court held that strict compliance with the time limits imposed by KRS 439.265 is required. And under Frank v. Commonwealth, [No.] 2015-CA-001558-MR (Ky. [App.] June 9, 2017), the Court held that the period of limitations for calculating the filing of a motion for shock probation begins on the date of the final judgment, namely, at sentencing, not when the Judgment and Sentence is entered by the Circuit Court Clerk. This court realizes that Frank is an unpublished opinion; nonetheless, this court finds the reasoning in Frank persuasive and on point of the issue of timeliness in this case.

For these reasons, the court finds it lacks jurisdiction to consider the motion on its merits.

Zaccheus-Miller appeals. She contends that the trial court erred in concluding that it lacked jurisdiction under KRS 439.265 because she had not “been sentenced” within the meaning of KRS 439.265 until judgment was entered on April 17, 2025. Thus, she contends that her motion was timely filed.

Our review is de novo. Commonwealth v. Settles, 488 S.W.3d 626, 629 (Ky. App. 2016).

Kentucky courts require strict compliance with the time limits imposed by KRS 439.265(1) for filing a motion for shock probation. The time limits of KRS 439.265(1) are calculated from one of two events: (1) when “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 (2) when the defendant is “delivered to the keeper of the institution to which he has been sentenced ․” The plain and unambiguous language of KRS 439.265(1) expresses that the operation of the time limits for filing a motion for shock probation is based on the date when a defendant is delivered into the hands of his jailer[.]

Terhune, 907 S.W.2d at 782 (bold-face emphases added).

In Frank, No. 2015-CA-001558-MR, 2017 WL 2492081, another panel of this Court rejected the argument that the limitations period for filing shock probation motions should be calculated from the date on which final judgment is entered. “While we recognize the entry of a final judgment triggers numerous limitations periods ․ we are simply not at liberty to disregard the plain language of KRS 439.265(1).” Id. at *2.

In the case before us, it is uncontroverted that Zaccheus-Miller was sentenced and remanded to jail on April 16, 2025, and that she moved for shock probation on October 14, 2025, more than 180 days later. The trial court correctly determined that it lacked jurisdiction.

Accordingly, we are compelled to affirm.

FOOTNOTES

1.   Kentucky Revised Statutes.

COMBS, JUDGE:

ALL CONCUR.