Supreme Court of Kentucky.
March 30, 1983.
On Review from Court of Appeals 81-CA-1899-MR (Jefferson Circuit Court No. 147443).
Jack E. Farley, Public Advocate, Mark A. Posnansky, Asst. Public Advocate, Frankfort, for movant.
Steven L. Beshear, Atty. Gen., Paul E. Reilender, Jr., Asst. Atty. Gen., Frankfort, for respondent.
OPINION OF THE COURT
The instant case is an appeal from the order of the trial court overruling an RCr 11.42 motion to set aside a previous conviction used as a basis of a subsequent conviction as a persistent felony offender in the first degree.
The Court of Appeals dismissed the appeal without reaching the merits on the basis of Wilson v. Commonwealth, Ky., 403 S.W.2d 710 (1966), because Keltee had completed his sentence long before the RCr 11.42 motion was filed.
On motion for discretionary review, movant asks that this court treat the RCr 11.42 motion as a CR 60.02 motion in the interest of judicial economy. We have elected to do so because the critical issues in this case, were it a 60.02 motion, are the same as those which have been considered and decided i Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983), decided this day.
For the reasons stated in Gross, the order of the trial court and the decision of the Court of Appeals are affirmed.
STEPHENS, C.J., AKER, GANT, LEIBSON and STEPHENSON, JJ., and TIPTON and WARREN, Special Justices, concur.