dissenting.
I respectfully dissent from the majority opinion because the majority misconstrues the clear language of the statute and misinterprets the equally clear legislative intent by injecting a tortured and erroneous interpretation of both the language and intent of the General Assembly.
The focus of the conflicting circuit court decisions is on the meaning of “shall be subject to the same penalties as an adult offender.” This is the same language that remains in the statute even as subsequently amended in 1996.
Both Britt and Morris, being over 14 years of age, but less than 18, when they committed separate armed robberies at Louisville businesses in 1995, came within the meaning of the adult offender language of KRS 685.020(4), which is:
Any other provision of KRS Chapter 610 to 645 to the contrary notwithstanding, if a child charged with a felony in which a firearm was used in the commission of the offense has attained the age of 14 years at the time of the commission of the alleged offense, he shall be tried in the circuit court as an adult offender and shall be subject to the same penalties as an adult offender, except that until he reaches the age of 18 years he shall be confined in a secured detention facility for juveniles or for youthful offenders, unless released pursuant to expiration of sentence or parole, and at age 18 shall be transferred to a facility operated by the Department of Corrections to serve any time remaining on his sentence.
Morris was 16 years old when he committed the armed robbery of an ice cream shop and received a sentence of eight years. Britt was 17 years old when he used a gun in robbing a convenience store. He received a sentence of ten years which was probated after six months in jail. The Court of Appeals, in a 7-5 decision, affirmed the eight-year sentence for Morris and reversed and remanded the probated sentence given to Britt.
The Court of Appeals correctly determined that KRS 635.020(4) created a new classification under which offenders 14 to 17 years of age, who commit a felony with a firearm, are to be treated as adults for all purposes related to that crime and not treated as juveniles.
Consequently,, Britt was not eligible for probation because he had forfeited the protection of the juvenile code by using a deadly weapon in the robbery and he thereby became an adult offender. KRS 533.060(1) denies probation to a person who has been convicted of a felony which involves the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury. The sentence imposed on Morris was correct.
The accused individual, who may be a juvenile, who uses a firearm in the commission of an offense clearly chooses to be treated as an adult offender for all purposes. The choice is reserved to the individual involved in the criminal enterprise and not to the courts to provide a strained interpretation of the language and intent of the General Assembly in order to achieve an erroneous result.
To view this as purely a transfer issue is to ignore reality and common sense. It runs afoul of the express statutory standard for interpreting the action of the legislature. KRS 446.080. The Court of Appeals and Circuit Judge Potter got it right. The use of a firearm when committing a felony elevates the criminal conduct of a juvenile to that of an adult, and therefore adult consequences must necessarily follow. Moreover, there is no necessity to seek refuge in the application of the so-called rule of lenity because the statute in question is not ambiguous.
KRS 446.080 provides in pertinent part that all statutes shall be liberally construed with a view to promote their objects and carry out the intent of the legislature. All words and phrases shall be construed according to the common and approved use of language except certain technical words and phrases. Surely the language and the intent of the legislature were abundantly clear when they stated that offenders between the ages of 14 and 17 who commit a felony with a firearm are to be treated as adults for all purposes related to that crime notwithstanding the provisions of the juvenile code. The *152decision of the Court of Appeals was correct and should be upheld in all respects.
I would affirm the convictions in all respects.