FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Akapito
11 FSM Intrm. 194 (Chk. 2002)

[11 FSM Intrm. 194]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

HENZEL AKAPITO,
Defendant.
 
CRIMINAL CASE NO. 2000-1506
 
ORDER
 
Richard H. Benson
Specially Assigned Justice
 
Decided: October 10, 2002
 
APPEARANCES:
 
For the Plaintiff:                        R. Anthony Welch, Esq.
                                                   Assistant Attorney General
                                                   FSM Department of Justice
                                                   P.O. Box PS-105
                                                   Palikir, Pohnpei FM 96941

[11 FSM Intrm. 195]

 
For the Defendant:                  Joses Gallen, Esq.
                                                  P.O. Box 255
                                                  Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure ) Sentencing
     The court may reduce a sentence from one of incarceration to one of probation within 120 days after the sentence is imposed, or within 120 days after the courts receipt of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or after entry of any order or judgment denying review of, or having the effect of upholding, a judgment of conviction. FSM v. Akapito, 11 FSM Intrm. 194, 195 (Chk. 2002).
 
Criminal Law and Procedure ) Sentencing
     The FSM Supreme Court has jurisdiction to hear a Rule 35 motion for reduction of sentence after a convicted criminal defendant has dismissed his own appeal. FSM v. Akapito, 11 FSM Intrm. 194, 196 (Chk. 2002).
 
Criminal Law and Procedure ) Parole
     If a motion were considered to be a parole application based on the defendant having serveda of his sentence then it would have to be denied, with leave to renew within 30 days, for failure to follow the proper procedures and supply the proper information. FSM v. Akapito, 11 FSM Intrm. 194, 196 (Chk. 2002).

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COURTS OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     This comes before the court on the defendants Motion for Reduction of Sentence to Reduce His Incarceration Sentence to a Grant of Probation, filed May 14, 2002. At that time, this matter was still pending before the FSM Supreme Court appellate division and jurisdiction rested there.

     On August 29, 2002, the appellate division ordered the appeal dismissed. Jurisdiction was then returned to this division. On September 16, the defendant, Henzel Akapito, filed his Defendants Responses to Plaintiffs Opposition to Application for Grant of Probation, along with supporting affidavits, in response to the governments opposition which had already been served on him but not yet filed. The governments Response to Motion for Reduction of Sentence was filed on September 25, 2002. Also filed on September 25, 2002 was Lieutenant Isoda Nakashimas affidavit.

     Citing Criminal Procedural Rule 35(b), Akapito asks that his sentence be reduced from one of incarceration to one of probation. That rule provides that:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the FSM Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. Changing a sentence from a sentence of incarceration to a

[11 FSM Intrm. 196]

grant of probation shall constitute a permissible reduction of sentence under this subdivision. The court may also reduce a sentence as provided by statute.

FSM Crim. R. 35(b).

     The government contends that the court lacks jurisdiction to reduce Akapitos sentence because the appellate divisions dismissal of Akapitos appeal was on Akapitos own voluntary motion and not "upon affirmance of the judgment or dismissal of the appeal, or . . . any order or judgment of the FSM Supreme Court denying review of, or having the effect of upholding, a judgment of conviction." The governments position is that a criminal defendant cannot get a second 120-day period to ask for reduction of his sentence by appealing, then voluntarily dismissing his own appeal before any ruling by the appellate court. The government also notes Akapitos statement that he has served over one third of his sentence of incarceration and that this point is relevant only to a parole eligibility and that since Akapitos motion does not comply with the Parole Rules requirements as to form, substance, or procedure, as a parole request it must be denied.

      Akapito replies he filed this motion after he filed his appellate motion to dismiss the appeal so that it is timely, and that he is not seeking parole, but a reduction of sentence under Rule 35.

      The court concludes that it has jurisdiction over this motion for reduction of sentence. Neither party cited any authority for its position other than the rule itself. The only case that the court in its own research could find on point was Singletary v. State, 583 P.2d 847 (Alaska 1978), which involved a Rule 35 similar (but not identical) to the FSMs. The Singletary court held that when a convicted criminal defendant dismissed his own appeal, id. at 848 & n.1, the defendant could still seek a reduction of his sentence by the trial court even though no formal mandate had been issued by the appellate court dismissing the appeal, id. at 849.

      The court also notes that the government is correct that if this were a parole application based on Akapito having serveda of his sentence then it would have to be denied, with leave to renew within 30 days, for failure to follow the proper procedures and supply the proper information. FSM Par. R. 4(b)(2). Akapito, however, specifically states that he is seeking a Rule 35 reduction of sentence, not parole.

     The court notes that item five in Lt. Isoda Nakashimas affidavit which was attached to the governments response states that Akapito was seen as a passenger in a vehicle, but it does not state whether the driver was a Chuuk state police officer.

      The court, before ruling on the motions substance, would like more information. Specifically, the court would like to know more about the "special treatment" Akapito allegedly has been receiving in and out of jail. Some of this was first brought to the courts attention in the governments Response to Third Petition for Work Release, filed October 2, 2001.

     Now therefore it is hereby ordered that the former State Justice Ombudsman, Kerio Walliby, and his successors in office, Acting State Justice Ombudsman Rolina J. Otto and State Justice Ombudsman Harry Narruhn, shall file, no later than October 25, 2002, a report or reports concerning this alleged "special treatment." The court will provide the report(s) to the parties, who shall have ten days to file and serve their comments thereon.

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