In the commonwealth's brief, Shackelford said that rule applies only to the Corrections Department, not the courts.
The case began in 2009, when Kidd pleaded guilty in exchange for five years' probation.
When he was arrested three years later for traveling from Ohio to Kentucky, the prosecution and defense agreed he had done so to visit his sick mother and that it was a technical violation justifying something short of revocation, according to Jewell's brief.
"After all, Kidd had not picked up any new charges, in any station, during the 2½ years he was on probation," Jewell said.
But Judge Jones said the violation was more than technical, noting that Kidd had been allowed to return to Kentucky for two months when his sister was dying and could have asked for permission again.
The court found that he was in need of "correctional treatment that can be provided most effectively by commitment to prison" and that continuing Kidd's probation would "unduly depreciate the seriousness of the crime."
Shackelford also noted that Kidd voluntarily returned to Kentucky — "absent proof to the contrary, such as fairies magically transporting" him across the state line.
But Jewell argues that the court failed to make two findings required under the sentencing reform law: that the probation violation "constitutes a significant risk to prior victims or the community," and that the probationer "cannot be managed in the community."
"Mr. Kidd does not pose a significant risk to anyone," Jewell said in his brief. "And there was no evidence that he cannot be appropriately managed in the community."
The state Court of Appeals affirmed the revocation of Kidd's probation.
Allison Martin, a spokeswoman for Conway, would say only that the decision on Kidd's sentence was up to the circuit judge and that the attorney general's office is bound by law to defend any sentence imposed by a judge or jury in Kentucky. Conway is seeking the Democratic nomination for governor.