RENDERED: AUGUST 28, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2026-CA-0020-MR
JENNIFER ZACCHEUS-MILLER APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 24-CR-00272
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EASTON, AND L. JONES, JUDGES.
COMBS, JUDGE: This case involves the issue of the timeliness of the filing of a
motion for shock probation. Appellant, Jennifer Zaccheus-Miller, challenges the
trial court’s determination that it lacked jurisdiction to consider her motion for
shock probation on the merits because the motion was untimely filed. After our
review, we affirm.
Zaccheus-Miller pled guilty to and was convicted of two Class C
felonies for Theft by Unlawful Taking. She was sentenced to six years in prison
and was ordered to pay restitution. On April 16, 2025, the trial court entered
Judgment and Sentence, and Zaccheus-Miller was immediately remanded to
custody.
On October 14, 2025, Zaccheus-Miller, by counsel, filed a motion for
shock probation pursuant to KRS1 439.265. In relevant part, the statute provides:
(1) 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) days after 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. . . .
The motion was heard on November 19, 2025. By Order entered on
December 8, 2025, the court determined that it did not have jurisdiction to consider
the merits because the motion had been untimely filed. The court explained as
follows:
[A]fter a sentencing hearing on April 16, 2025, the
Defendant was remanded to the Department of
Corrections to commence serving her sentences. The
Judgment and Sentence was signed on April 16, 2025,
1
Kentucky Revised Statutes.
-2-and entered by the Circuit Court Clerk on April 17, 2025.
The motion was filed on October 14, 2025. One hundred
and eighty days from April 16, 2025, is October 13,
2025.
In Terhune v. Commonwealth, 907 S.W.2d 779,
782 (Ky. App. 1995), the Court held that strict
compliance with the time limits imposed by KRS
439.265 is required. And under Frank v.
Commonwealth, [No.] 2015-CA-001558-MR (Ky. [App.]
June 9, 2017), the Court held that the period of
limitations for calculating the filing of a motion for shock
probation begins on the date of the final judgment,
namely, at sentencing, not when the Judgment and
Sentence is entered by the Circuit Court Clerk. This
court realizes that Frank is an unpublished opinion;
nonetheless, this court finds the reasoning in Frank
persuasive and on point of the issue of timeliness in this
case.
For these reasons, the court finds it lacks
jurisdiction to consider the motion on its merits.
Zaccheus-Miller appeals. She contends that the trial court erred in
concluding that it lacked jurisdiction under KRS 439.265 because she had not
“been sentenced” within the meaning of KRS 439.265 until judgment was entered
on April 17, 2025. Thus, she contends that her motion was timely filed.
Our review is de novo. Commonwealth v. Settles, 488 S.W.3d 626,
629 (Ky. App. 2016).
Kentucky courts require strict compliance with
the time limits imposed by KRS 439.265(1) for filing a
motion for shock probation. The time limits of KRS
439.265(1) are calculated from one of two events: (1)
when “the defendant has been incarcerated in a county
-3-jail following his conviction and sentencing pending
delivery to the institution to which he has been
sentenced,” or (2) when the defendant is “delivered to the
keeper of the institution to which he has been
sentenced . . . .” The plain and unambiguous language
of KRS 439.265(1) expresses that the operation of the
time limits for filing a motion for shock probation is
based on the date when a defendant is delivered into
the hands of his jailer[.]
Terhune, 907 S.W.2d at 782 (bold-face emphases added).
In Frank, No. 2015-CA-001558-MR, 2017 WL 2492081, another
panel of this Court rejected the argument that the limitations period for filing shock
probation motions should be calculated from the date on which final judgment is
entered. “While we recognize the entry of a final judgment triggers numerous
limitations periods . . . we are simply not at liberty to disregard the plain language
of KRS 439.265(1).” Id. at *2.
In the case before us, it is uncontroverted that Zaccheus-Miller was
sentenced and remanded to jail on April 16, 2025, and that she moved for shock
probation on October 14, 2025, more than 180 days later. The trial court correctly
determined that it lacked jurisdiction.
Accordingly, we are compelled to affirm.
ALL CONCUR.
-4-BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael W. Bouldin Russell Coleman
Morgan A. Knox Attorney General of Kentucky
Covington, Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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