Commonwealth v. Lundergan , 847 S.W.2d 729 ( 1993 )

COMBS, Justice,

concurring.

I concur with Special Justice Bratt’s opinion affirming the Court of Appeals.

The question at the appellate level is what was he convicted of — misdemeanor or felony? A review of the trial court record, particularly the sentencing phase instruction and the verdict of the jury convinced me that it was the intention of the jury to find him guilty of a misdemeanor. That pivotal verdict is as follows:

We, the jury, fix the defendant’s punishment at NONE (period of confinement) and/or a fine of $1,000.

This punishment represents a legal sentence under the statute defining the offense. I must conclude that the conduct constituted a misdemeanor, subject to the statute of limitations, and that the judgment and sentence may not be imposed.