¶1dissenting:
¶2I respectfully dissent from the majority opinion. Appellant, Herbert Eggerson, brings this appeal in his struggle to be free from a persistent felony offender conviction under KRS 532.080. The Offices of Public Advocacy and Attorney General have briefed several issues succinctly and somewhat heatedly. The record presents one significant issue which merits the attention of this court. On December 16,1980, appellant was convicted by a jury in the Fayette Circuit Court of second-degree burglary and two counts of receiving stolen property. The jury fixed his punishment at sentences of six (6) years, three (3) years, and twelve (12) months (misdemeanor) respectively. At the same instance, in a bifurcated proceeding, he was adjudged a persistent felony offender in the first degree, whereupon the same jury enhanced the previous two felony sentences to fifteen (15) years and thirteen (13) years respectively. On January 18, 1981, the Fayette Circuit Court entered a judgment and sentence of imprisonment, with the sentences to run concurrently for a total of fifteen (15) years.
¶3As a basis for the persistent felony offender conviction, the state used two “priors”, a 1961 Clark County conviction and a 1978 Bourbon County conviction, both having to do with theft. Appellant took an appeal from the persistent felony offender conviction and this court affirmed in an opinion dated October 23,1981. The appeal primarily questioned the validity of the 1961 Clark Circuit Court conviction, used as a prior, in that the record had insufficient evidence of appellant’s age at the time of the offense. Being under eighteen (18) would have eliminated the offense as a basis for persistent felony offender prosecution. KRS 520.080(2)(b). The validity of the 1978 Bourbon County conviction was not assailed. Thereafter, appellant began proceedings in the Fayette Circuit Court under RCr 11.42 and CR 60.02 alleging multiple grounds for invalidating his persistent *747felony offender conviction. Likewise he proceeded in the Bourbon Circuit Court attacking the 1978 conviction. The obvious purpose of these collateral proceedings was to “knock the props from under” the Fa-yette County persistent felony offender conviction of December 28, 1981, since a recidivist conviction cannot rest upon a pri- or conviction unlawfully obtained. See Ingram v. Wingo, 320 F.Supp. 1032 (E.D.Ky.1971).
¶4On August 12,1982, in his proceedings in Bourbon Circuit Court, a “Findings of Fact, Conclusions of Law and Order” was entered wherein the Court found the 1978 conviction was constitutionally deficient in not meeting the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The Bourbon Circuit Court went on to say the appellant was entitled to “some relief”, but the Bourbon Court was not the proper forum. It is arguable that the Bourbon Circuit Court, being one of general jurisdiction, could have granted relief. RCr 11.42. The appellant was or most assuredly would suffer confinement, albeit indirectly, because of the unconstitutional conviction in that court. It was the 1978 conviction that formed an indispensable basis for his persistent felony offender confinement out of the Fayette Circuit Court. However, we need not decide this matter, for the Findings of Fact, Conclusions of Law and Order of the Bourbon Circuit Court were brought directly to Fayette Circuit Court for consideration on the CR 60.02 motion. I would hold that the Fayette Circuit Court, especially since it made no findings of its own, was bound by the Bourbon Court’s decision holding the Bourbon conviction constitutionally defective. The doctrine of res judicata and collateral estoppel demand such. This doctrine is applicable in criminal as well as civil cases. 21 Am.Jur.2d Judgments § 49. The 1978 Bourbon conviction having been declared invalid can neither be used to support a conviction or enhance punishment. See Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
¶5The Commonwealth argues that Ray v. Commonwealth, Ky.App., 633 S.W.2d 71 (1982), forbids relief in this case. Raywas a case where an attack was made upon a twelve (12) year old conviction under CR 60.02 in an effort to strike the underpinning of a persistent felony offender conviction. This court held the CR 60.02 proceeding to be “out of time”. In the case at hand, appellant Eggerson made timely application to the Bourbon Circuit Court to void the 1978 conviction. His delay was little more than two years. Assuming the passage of time can bar relief from a constitutionally unsound, and thus void, conviction as suggested in Ray, it has no application in this case. Two years, while appellant was engrossed in litigation elsewhere relating to the same purpose, cannot be deemed an inordinate delay. In fact, appellant has been unceasing in his assault upon his conviction.
¶6For the foregoing reasons, I would reverse the order of the Fayette Circuit Court with directions to enter an order vacating the persistent felony offender conviction first degree and remand for resentencing.