concurring in part and dissenting in part.
I respectfully dissent from that part of the majority opinion that denies standing to McKinney to petition the Court of Appeals for a writ of prohibition. I concur in the result reached by the majority in that part of the opinion which determines that the applicable statute makes no provision for the Commonwealth to require a hearing to present arguments prior to the ruling on the motion for shock probation.
McKinney, as noted by the Court of Appeals, as a victim, has an absolute statutory right, pursuant to KRS 421.520(1) to submit a written victim-impact statement. KRS 421.520(3) requires that the trial court consider any such victim-impact statement prior to releasing a defendant on shock probation.
On January 7,1994, a jury found Brammer guilty of reckless homicide and of leaving the scene of an accident. After a sentencing hearing, she was sentenced to a prison term of three and a half years for reckless homicide and 12 months for leaving the scene of an accident, to be served concurrently.
On March 29, 1994, Brammer filed a motion for shock probation and on the same day served a copy of the motion on the Commonwealth Attorney by United States Mail. Later on that same day, the trial judge entered an order granting shock probation. KRS 439.265, the shock probation statute, does not require that the trial court conduct a hearing on a motion for shock probation.
I disagree with the rationale of the majority because I believe that McKinney had standing to file a petition for a writ of mandamus. In order to have standing to sue, there must be a present, real and substantial, judicially recognizable interest in the subject matter of the litigation. Cf. Kraus v. Kentucky State Senate, Ky., 872 S.W.2d 433 (1994). The issue of standing is to be decided on the facts of each individual case. Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186 (1989). In this case, McKinney is the victim of a crime and as such has a judicially recognizable interest. Her right as a crime victim pursuant to KRS 421.500, belonged to her independent of the rights of the Commonwealth of Kentucky. See Wilson v. Commonwealth, Ky.App., 839 S.W.2d 17 (1992). Consequently, I believe that McKinney had standing to bring a petition seeking mandamus.
The real problem in this case is the shortcomings of KRS 439.265 in regard to the implementation of the rights of the victim to be present at a shock probation hearing. The majority correctly recognizes that the language of the statute provides the defendant only with the right to request the hearing. Here the hearing was waived and the Commonwealth has no statutory right to request a hearing or otherwise file a response. Even the right of the defendant to request a *353hearing for shock probation is within the sound discretion of the trial court.
The statutes in question need to be reviewed by the General Assembly in order to give full implementation to what appears to be the legislative intent. Victim rights are a creature of statute. It is the responsibility of the legislature to correct any deficiencies. It is obvious that without notice, any right that a victim may have cannot be exercised. In this case, the victim had no statutory legal right to a hearing. The stark reality of the status of the law must be adhered to by this Court. However, it should be recognized that the legislature has the authority to correct, change and improve the statutes so as to give real meaning to the language of the law.
I write in order to emphasize the problem. If it is to be solved, it must be accomplished by the General Assembly in order to provide a complete package of victim rights. As noted by the majority, the legislature has provided the opportunity for hearings in similar situations such as KRS 439.265(3)(b), the work release statute.