Commonwealth of Kentucky s72

COMMONWEALTH OF KENTUCKY CALLOWAY CIRCUIT COURT CASE NO. 04-CR-160

COMMONWEALTH PLAINTIFF

VS. MOTION TO DISMISS BURGLARY CHARGE

RANDY XXXXXX DEFENDANT

Comes now the Defendant, and files this motion to dismiss burglary charge on the ground that it is facially invalid, and respectfully shows the Court as follows:

Burglary in the first degree is codified at KRS 511.020(1) and provides as follows:

A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime: (a) Is armed with explosives or a deadly weapon; or (b) Causes physical injury to any person who is not a participant in the crime; or (c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.

The indictment in this case provides in full that: “THE GRAND JURY CHARGES:

Ct. 3 That on or about the 8th day of June, 2004, in Calloway County, Kentucky, the above named Defendant committed the offense of 1st Degree Burglary, by unlawfully entering the residence of Tracy Xxxxxx, in violation of KRS 511.020; AGAINST THE

PEACE AND DIGNITY OF THE COMMONWEALTH.”

The indictment does not allege that Mr. Xxxxxx entered the residence of Ms.

Xxxxxx with the intent to commit a crime. The indictment does not specify the basic requirements of a Burglary 1st degree offense, and does provide fair notice which element of Burglary 1st degree the

Commonwealth intends to prove.

Respectfully submitted,

______B. Scott West Asst. Public Advocate 503 N. 16th St. Murray, KY 42071 (270) 753-4633

NOTICE OF HEARING

The Commonwealth will please take notice that this case will be heard on the morning of the trial, June 16th, 2005, at 9:00 a.m.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served upon the Hon. Gale Cook, Commonwealth Attorney, via ______U.S. Mail, postage pre-paid, or ______hand delivery on this the ______day of ______, 2005.

______B. Scott West