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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TOTHERULES OF CIVIL PROCEDURE PROMULGATEDBYTHE SUPREME COURT, CR76.28(4)(C), THIS OPINION IS NOT TOBE PUBLISHED ANDSHALLNOTBE CITED ORUSEDAS BINDING PRECEDENT INANYOTHER CASEIN ANYCOURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDEREDAFTERJANUARY 1, 2003, MAYBE CITED FOR CONSIDERATION BYTHECOURTIF THEREIS NOPUBLISHED OPINIONTHATWOULDADEQUATELYADDRESS THEISSUE BEFORE THECOURT. OPINIONS CITED FORCONSIDERATION BYTHE COURTSHALL BE SET OUTAS ANUNPUBLISHED DECISION INTHEFILEDDOCUMENTAND A COPYOFTHE ENTIRE DECISION SHALL BE TENDERED ALONGWITHTHE DOCUMENTTOTHECOURTAND ALL PARTIES TOTHE ACTION.
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2009-SC-000047-MR
JACK RANDALLKIRK APPELLANT
ON APPEAL FROM COURTOFAPPEALS
V. CASE NO. 2008-CA-000432
130YD CIRCUIT COURTNO. 97-CR-00033

HONORABLE DAVID HAGERMAN, JUDGE, APPELLEE BOYD CIRCUITCOURT AND COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THECOURT
AFFIRMING

Appellant, Jack Randall Kirk, pro se, appeals as a matter of right from the Court ofAppeals' denial of his petition for a writ of prohibition. The Court: ofAppeals denied the petition on grounds that Appellant had failed to produce any evidence that the circuit courtwasacting incorrectly within its jurisdiction and that the arguments presented in the petition should have been raised on direct appeal or in one of Appellant's other post-conviction motions. Appellant argues to this Court that the circuit court lacked subject matterjurisdiction (because the circuit court violated the Fifth Amendment's Double Jeopardy
clause), and that the Court. of Appeals abused its discretion in denying his
petition for a writ of prohibit-ion. We ail ri-ii, albeit on other grounds.

I. BACKGROUND
On September 8, :1978, Appellant was indicted by a Boyd County Grand Jury and charged with murder. That. indictment was dismissed in 1979 due to Appellant's incompetence to stand trial. On April 14, 1997, Appellant was reindicted for the same offense. Ajury convicted Appellant and he was sentenced to serve a life sentence. Appellant appealed his conviction and this Court affirmed. l Appellant thereafter attacked his conviction by filing a habeas corpus action in federal court and an RCr 11 .42 motion, both ofwhich were denied. Appellant then filed a pro se petition for a writ of prohibition in the Court ofAppeals, requesting it vacate his conviction and order his immediate release from custody, on the grounds that the subsequent indictment placed himin double jeopardy. He also filed other motions not in question in this appeal. The Court ofAppeals denied his writ of prohibition. He nowappeals as a matter ofright.
II. ANALYSIS
Ourbest reading of Appellant's pro se briefis that he argues that the order dismissing the original indictment did not indicate whether it was with prejudice or without prejudice, and therefore, was with prejudice and was an adjudication on the merits, and therefore, the reindictment was in violation of the Fifth Amendment's Double Jeopardy clause. He further argues that
Kirk v. Commonwealth, 6 S.W.3d 823 (Ky. 1999).
because the process was in violation of the Double Jeopardy clause, the Boyd
Circuit Court did not have subject matterjurisdiction to enter ajudgment of
conviction against him, and therefore, the writ of prohibition should be
granted.
Awrit of prohibition is an extraordinary remedy,available only in two instances: 1) when a "lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through an application to an intermediate court; or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice or irreparableinjury will result."
Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 456-57 (Ky. 2009) (uotin Hoskins
v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004)). "[A]lthough awrit of prohibition will
issue only in exceptional circumstances, whether to do so lies within the sound
discretion of the court in which the writ is sought." St. Clair v. Roark, 10
S.W.3d 482, 485 (Ky. 1999) (chin Haight v. Williamson, 833 S.W.2d 821, 823
(Ky. 1992); Jones v. Hogg, 639 S.W.2d 543, 543 (Ky. 1982)). Additionally,
although doublejeopardy is an appropriate subject for a writ of prohibition, it is not mandatory that it be addressed in that context. The court in which the petition is filed may, in its discretion, address the merits of the issue within the context of the petition for thewrit, or may decline to do so on grounds that there is an adequate remedy by appeal.
St. Clair, 10 S.W.3d at 485.
The standard of review we must applywhen reviewing a denial of a writ
of prohibition depends on the class or category of writ. Grange Mutual
Insurance Co. v. Trude, 151 S.W. 3d 803, 810 (Ky. 2004). When the lower court is alleged to be acting outside its jurisdiction, the proper standard is de novo review becausejurisdiction is generally only a question of law. Id. When an appellant alleges that the,court against which the writ was filed is acting within its jurisdiction but in error, the standard is abuse of discretion. Id. In the case before us, Appellant argues that the trial court did not have jurisdiction because the indictment violated double jeopardy. This is incorrect. The circuit court is the proper court in which a charge of murder is to be tried. Thus, the circuit court had subject matter jurisdiction. Adouble jeopardy violation does not remove a court's jurisdiction over a case; rather, it is an allegation that the court is acting erroneously within its jurisdiction. Therefore, we review this case under an abuse of discretion standard.
Section 13 of the Kentucky Constitution provides that "[n]o person shall, for the same offense, be twice put injeopardy . . . . .. See also U.S. Const. amend. V. The U.S. Supreme Court has held that "[t]he federal rule that jeopardy attaches when thejury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy" and that the rule is binding on the states. Crist v. Bretz, 437 U.S. 28, 38 (1978). See also Cardine
v. Commonwealth, 283 S.W.3d 641, 646-47 (Ky. 2009). Appellant did not make any double jeopardy arguments before the trial court. However, we have held that double jeopardy questions mayalways be raised on appeal, despite a failure to preserve the issue at trial. Terry v. Commonwealth, 253 S.W.3d 466,
a
See KRS 23A.010(i).
470 (Ky. 2007). This petition for a writ of prohibition is the first time Appellant
has raised the issue of double jeopardy.
The order dismissing the original indictment, with or without prejudice,
was not contained in the record . The previous opinion relating to this case ,
stated that the original indictment was dismissed due to Appellant's
incompetence to stand trial. It does not mention whether the dismissal was
with or without prejudice. Appellant argues that it was the Commonwealth's
obligation to produce the order which dismissed the original 1978 indictment
and that their failure to do so estopped them from requesting that the court
deny Appellant's petition for a writ of prohibition.
It is well-established that it is the duty and obligation of the appellant to establish error upon appellate review, and to see that the record is complete on appeal. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007). When a record is incomplete, there is a presumption ofcorrectness of the judgment upon review. Clarkv. Commonwealth, 223 S.W.3d 90, 102 (Ky. 2007); Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 604 (Ky. 1967).
Accordingly, we cannot say that the Court ofAppeals abused its discretion in denyingAppellant's writ of prohibition, and hence, affirm. Minton, C.J., Cunningham, Schroder, Scott, andVenters, JJ., concur. Noble and Abramson, JJ., concur in result only.
3 Kirk, 6 S.W.3d at 826.
Jack Randall Kirk, PROSE
#136875, Kentucky State Reformatory
3001 West Highway 146
LaGrange, KY 40032
COUNSELFORAPPELLEE:
Honorable Charles David HagermanJudge, Boyd Circuit Court
P. O. Box 491 Catlettsburg, KY 41129
COUNSELFORREAL PARTY IN INTEREST:
Jack Conway Attorney General
Kenneth Wayne RiggsAssistant Attorney General Office ofthe Attorney General
1024 Capital Center Drive Frankfort, KY 40601

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