dissenting.
I must respectfully dissent from the majority opinion of this court because I am of the opinion that the appeal of this interlocutory ruling is not properly before this court.
The majority opinion states that this appeal of an interlocutory order is expressly authorized by KRS 22A.020(4). The statute does indeed provide that “An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the circuit court.... ” However, I am not persuaded that the statute contemplates appeals from rulings such as presented by the case at bar.
Instead, the statute, in my judgment, was designed to allow the Commonwealth to appeal from orders and rulings which go to the merits of the case, or at least to the Commonwealth’s presentation of the merits. The most notable example is an appeal from a ruling suppressing evidence. In such a case, the necessity of allowing the appeal prior to trial is readily apparent. A direct appeal following acquittal would be of no avail because the rule against double jeopardy would prohibit retrial. Thus, KRS 22A.020(4) allows the state an appeal because the evidence suppressed may be vital to the state’s case and cannot be cured by direct appeal.
In the case at bar, however, an “adverse” ruling regarding change of venue can in no way be considered “vital” to the Commonwealth’s case on the merits. As the majority makes clear, there is but one circuit court in this state. We cannot assume that the Commonwealth’s case is in any way prejudiced by this change in venue. Assuming the change of venue was improper under the circumstances, as the majority has held, that fact may be established by an appeal for certification of the law to affect future cases, or otherwise brought before this court by writ of prohibition, as the order was not within the discretion of the circuit judge.
However, under these circumstances a KRS 22A.020(4) appeal is improper. This court, in Eaton v. Commonwealth, Ky., 562 S.W.2d 637, stated there was “no reason why an interlocutory ‘ruling’ entered prior to trial, if it decides a matter vital to the Commonwealth’s case, could not be reviewed by appeal” under KRS 22A.020(4). We cannot assume that the trial of these defendants in Bell and Laurel Circuit Courts, respectively, instead of Franklin Circuit Court can in any way affect the vital interests of the Commonwealth as enunciated in Eaton, supra. On the contrary, we must assume that all parties, including the Commonwealth, will receive an equally fair trial in any court in this jurisdiction.