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MODIFIED: SEPTEMBER 11, 2009 RENDERED: JUNE 25, 2009 BE PUBLISHED
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2008-SC-000429-M
o9 Kt_4_ ___D.C,.
DAYRON CASTELLANOSHIDALGO, APPELLANT A/K/ADAYRON CASTELLANOS, REAL PARTY IN INTEREST
ONAPPEAL FROM COURTOF APPEALS
V. NO. 2008-CA-000640-OA JEFFERSON CIRCUIT COURT NO. 07-CR-002194
COMMONWEALTH OF KENTUCKY, ET AL APPELLEES
AND
2008-SC-000518-MR
HON. A.C. MCCAYCHAUVIN, JUDGE CROSS-APPELLANT JEFFERSON CIRCUIT COURT
ON APPEAL FROM COURTOF APPEALS
V. NO. 2008-CA-000640-OA JEFFERSON CIRCUIT COURTNO. 07-CR-002194
COMMONWEALTH OF KENTUCKY, ET AL CROSS-APPELLEES
OPINION OF THECOURTBY JUSTICE CUNNINGHAM
AFFIRMING
On June 22, 2007, Appellant, Dayron Castellanos Hidalgo, a/k/a Dayron
Castellanos, and a co-defendant robbed a Cash Express business using a BB
gun. Appellant was subsequently indicted on one count of robbery in the first
degree. During plea negotiations, the Commonwealth offered to amend the
charge to robbery in the second degree if Appellant would refrain from seeking
probation or shock probation. At sentencing on January 7, 2008, Appellant
supplemented the pre-sentence investigative report with statements regarding
his good character, even though he was not technically asking for probation.
The Commonwealth objected and the Jefferson Circuit Court denied probation.
However, the court stated that it would consider shock probation if it had
authority to do so sua sponte. The court set a status/scheduling hearing in
sixty days, at which time it would let the parties know if shock probation would
be considered and, if so, the date of the shock probation hearing. The
Commonwealth objected and moved to set aside the plea and take the case to
trial.
At the March 10, 2008 status hearing, the circuit court, on its own motion, scheduled a shock probation hearing for April 23, 2008. The Commonwealth objected and sought a writ of prohibition from the Court of Appeals. The Court of Appeals granted the writ on the basis that the trial court was acting outside its jurisdiction. Appellant then appealed that decision to this Court, and the Hon. A.C. McCay Chauvin filed a cross-appeal.
The sole issue on appeal is the authority of the circuit court to sua sponte conduct a hearing on shock probation. For the following reasons, we affirm the decision of the Court ofAppeals.
The Court of Appeals has broad discretion in the issuance of writs of prohibition, and each case must be considered on its own merits. Chamblee v.
Rose, 249 S.W.2d 775, 776 (Ky. 1952). Because writs interfere with the proceedings of a trial court and the efficient dispatch of our appellate duties,
the courts of this Commonwealth have formulated a rule governing the discretionary choice between issuing a writ and relegating a petitioner to the right to appeal. Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004). This Court has
consistently held that a writ of prohibition is appropriate in two circumstances:
1) when the lower court is acting without or beyond its jurisdiction and there is no adequate remedy through an application to an intermediate court; or 2) when the lower court is acting erroneously within its jurisdiction, and there exists no adequate remedyby appeal or otherwise and great injustice and irreparable injury would result. Id. at 10. This case is an example of the lower court acting beyond itsjurisdiction.
The proper standard of review of a decision with respect to a writ of prohibition depends on the class of writ case. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). De novo review is generally the proper
standard where the lower court is alleged to be acting outside its jurisdiction, becausejurisdiction is generally only a question of law. Id. Thus, we review the granting of the writ de novo, giving no deference to the judgment below. Id.
"Shock probation" is purely a creature of statute. KRS 439.265(1) provides in relevant part:
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) daysafter 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. (Emphasis added.)
The plain language of KRS 439.265(1) requires the defendant to make a motion for shock probation. Appellant's reliance on 439.265(2) is also misplaced. KRS 439.265(1) provides the framework for the circuit court to acquire jurisdiction to consider shock probation. Subsection (2) of that statute is concerned only with the defendant's right to a hearing in response to motions "filed in accordance with subsection (1) of this section." KRS 439.265(2). "This statute only establishes a trial court'sjurisdiction after the
passage of 30 days imprisonment upon conviction and motion ofthe defendant."
Commonwealth v. Gross, 936 S.W.2d 85, 87 (Ky. 1996) (emphasis added). Because Appellant did not file a motion pursuant to KRS 439.265, and indeed could not as part of his plea agreement, the circuit court lacked jurisdiction to order a hearing or consider shock probation. A writ of prohibition, therefore, "is appropriate . . . to prevent [the] lower court from exceeding the lawful power or authority with which it is invested or from assuming some power not authorized by law . . . ; as for example, when the court proceeds contrary to the
dictates of a relevant statute." Corns v. Transportation Cabinet, Dept. of
Highways, Commonwealth of Ky, 814 S.W.2d 574, 578 (Ky. 1991).
The trial court had the option of accepting the plea agreement or rejecting it. RCr 8.10. By accepting the agreement, the court cannot then circumvent its terms by its own actions. Also, we recognize in this decision that "shock probation" is procedurally much different than outright probation. The latter requires no overt act by the defendant, but must be considered by the court in all eligible cases, regardless of what the Commonwealth agrees to recommend. KRS 533.010(2). The court maygrant outright probation against the recommendation of the Commonwealth's Attorney in the plea agreement. In such a case, it neither violates the plea agreement nor is acting outside its
jurisdiction.
Based upon all of the foregoing, the order of the Court of Appeals granting the writ of prohibition is hereby affirmed.
All sitting. All concur.
COUNSELFOR DAYRON CASTELLANOS HIDALGO:
Paul S. Gold
701 West Jefferson Street
Louisville, KY 40202
COUNSELFORHON. A.C. MCCAY CHAUVIN:
Max Harding Comley
Stewart Christopher Burch
Logan 8v Gaines, PLLC
114 W. Clinton Street
Frankfort, KY 40601
COUNSELFORCOMMONWEALTH OF KENTUCKY:
Jeanne Deborah Anderson
Office of the Attorney General Office of Criminal Appeals
1024 Capital Center Drive Frankfort, KY 40601-8204
Teresa Ann YoungAssistant Commonwealth's Attorney514 West Liberty Street Louisville, KY 40202
..;vuyrrmr (~Vurf of ~Rrufurhv
2008-SC-000429-MR
DAYRON CASTELLANOS HIDALGO, APPELLANT A/K/ADAYRON CASTELLANOS, REAL PARTY IN INTEREST
ON APPEAL FROM COURTOFAPPEALS
V. NO. 2008-CA-000640-OA JEFFERSON CIRCUIT COURTNO. 07-CR-002194
COMMONWEALTH OF KENTUCKY, ET AL APPELLEES
AND
2008-SC-000518-MR

HON. A.C. MCCAYCHAUVIN, JUDGE CROSS-APPELLANT JEFFERSON CIRCUIT COURT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2008-CA-000640-OA JEFFERSONCIRCUIT COURTNO. 07-CR-002194
COMMONWEALTH OF KENTUCKY, ET AL CROSS-APPELLEES
ORDER OF CORRECTION On the Court's ownmotion, the Opinion of the Court byJustice Cunningham, rendered June 25, 2009, is hereby modified by substituting pages 1 and3 of the opinion as attached hereto, in lieu of pages 1 and 3 of the
opinion as originally rendered. Said modification does not affect the holding. Entered: September 11, 2009.

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