Haymon v. Commonwealth , 657 S.W.2d 239 ( 1983 )

VANCE, Justice.

The question is whether possession of a firearm obtained during the commission of a burglary constitutes use of a weapon so as to preclude eligibility for probation, shock probation, or conditional discharge under the terms of K.R.S. 533.060(1).

Movant entered a plea of guilty to a charge of first degree burglary committed by knowingly and unlawfully entering a building with intent to commit a crime and while in immediate flight therefrom he was armed with a deadly weapon, a shotgun. K.R.S. 511.020(1). In fact, he stole the shotgun and left the premises with it. He was not armed with a deadly weapon when he entered the premises.

K.R.S. 533.060(1) provides:

When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge.

Upon the basis of this statute movant’s motion for probation was denied. On appeal to the Court of Appeals the denial of probation was affirmed. We granted discretionary review to consider the meaning which should be given to the phrase “use of a weapon” in the statute.

The Commonwealth contends that possession of a weapon involves its use; that the intent of the General Assembly was to deter the involvement or presence of weapons in the commission of crimes. Admittedly, the word “use” is subject to such a construction.

On the other hand, the General Assembly took pains to distinguish between being “armed” with a weapon and the “use of a weapon” in the burglary statute. The offense can be committed by one who is only “armed” with a deadly weapon but when dangerous instruments are involved there must be a showing of their use or threatened use. The movant contends, therefore, that mere possession of a weapon constitutes being “armed” with a weapon but “use” of a weapon contemplates that it be employed in some manner in the commission of an offense. This too is a plausible explanation of the meaning of the word “use.”

We conclude that the phrase “use of a weapon” as it is used in K.R.S. 533.060(1) is ambiguous in that it is subject to two entirely different but nevertheless logical interpretations. It is not possible to determine which meaning the General Assembly intended to be given to the phrase “use of a weapon” and for that reason the movant is entitled to the benefit of the ambiguity.

Because there was no showing that a weapon was used in any manner to further the commission of the offense, the trial court was in error in his belief that probation was precluded by the statute. This does not mean, of course, that probation should have been granted but only that it should have been granted or denied upon the basis of consideration of the merits of all other relevant factors.

The decision of the Court of Appeals is reversed, and the case is remanded for further consideration of the motion for probation.

STEPHENS, C.J., and VANCE, GANT, AKER, LEIBSON and STEPHENSON, JJ., concur. WINTERSHEIMER, J., dissents.