Evans v. Commonwealth , 645 S.W.2d 346 ( 1982 )

OPINION OF THE COURT

The movant Evans, a doctor of medicine located in Bell County, was indicted in Franklin County for violating KRS 194.-505(6) and KRS 205.850(4). The first count of the indictment alleged that during January through July of 1980 he devised a scheme to obtain Medicaid benefits by means of false and fraudulent representations which were presented for payment in the form of 54 separate claims for physician’s services. Count 2 set forth these 54 incidents in detail and charged Dr. Evans with violating KRS 205.850(4) by presenting claims to the Department of Human Resources for payment, knowing them to be false and fraudulent.

The movant Thomas, a doctor of dental medicine located in Clay County, was indicted in Franklin County for similarly violating the same two statutes and also for committing six separate offenses of theft by deception, in violation of KRS 514.-040(l)(a).

On the assumption that each of the alleged offenses was initiated in the county of the doctor’s residence and completed in Franklin County through submission of the claim to the state for payment, the trial court determined that venue lay in either county and entered an order transferring the cases to the Bell Circuit Court in the instance of Evans and to the Clay Circuit Court in the instance of Thomas. Cf. KRS 452.550: “When an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs.”

As expressly authorized by KRS 22A.020(4), the Commonwealth appealed these interlocutory orders to the Court of Appeals, which held that there is no authority for such a transfer and directed the trial court to enter new orders accordingly. This court granted discretionary review.

We agree entirely with the decision of the Court of Appeals, but take occasion to issue an opinion of our own in order to address one question the Court of Appeals did not discuss but which has been raised throughout by the movant Evans.

KRS 452.550 means only that certain offenses are indictable and may be prosecuted in either county. Once an indictment is returned, however, the statute does not purport to empower a trial judge of that particular circuit to transfer the prosecution to another county, as if the indictment had been returned there in the first instance.

It was the opinion of the trial court that because most of the witnesses probably reside in Bell and Clay Counties, and they are the counties in which the respective defendants themselves reside, justice would best be served by applying the doctrine of forum non conveniens. Unquestionably this would be a sensible approach, but the fact is that there is no existing authority for it. It amounts to a change of venue upon a ground and to counties of destination not embraced within the applicable statutes. Cf. KRS 452.210 et seq.

“The right to a change of venue is only bestowed by the statute, and the Legislature has authority to provide for the extent and manner of its exercise.” Heck v. Commonwealth, 163 Ky. 518, 174 S.W. 19, 20 (1915).

“The only power the court has to grant a change of venue is conferred by the statute ...” Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540, 543 (1911).

Even if it were assumed that venue is a procedural matter and thus comes within the judicial province, it would be necessary that an appropriate rule of procedure be promulgated for uniform use and application throughout the system.

The theory of forum non conveniens has one shortcoming which prevents its serving as an apt model for a change of venue. That is, it provides a basis on which one court may decline to entertain a case, but does not enable that court to force another court to take it. Theoretically we have in this state only one circuit court, but because there is no inherent authority for a judge in one circuit to move a case to the judge of another, the situation is the same as if the courts within the different circuits were separate.

The point not discussed by the Court of Appeals arises from the contention by Dr. Evans that the trial court should dismiss the indictment because it attempts to make a felony out of a series of 54 alleged misdemeanors, each involving less than $100. The answer is that the order denying his motion to dismiss on that ground was an interlocutory order and is not appealable. Whereas KRS 22A.020(4) authorizes the Commonwealth to appeal from an interlocutory order, cf. Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978), there is no comparable provision for an appeal by the defendant.

The decision of the Court of Appeals is affirmed and the cause is remanded to the Franklin Circuit Court for further proceedings.

STEPHENS, C.J., and O’HARA, PAL-MORE and STEPHENSON, JJ., concur. AKER and STERNBERG, JJ., dissent with separate dissenting opinions. CLAYTON, J., did not sit.