FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Moses
12 FSM Intrm. 509 (Chk. 2004)

[12 FSM Intrm. 509]

FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
KIMIS MOSES,
Defendant.
 
CRIMINAL CASE NO. 2002-1500
 
ORDER CONCERNING STAYS
 
Martin G. Yinug
Associate Justice
 
Decided: June 29, 2004
 
APPEARANCES:
 
For the Plaintiff:                      Matthew Crabtree, Esq.
                                                Assistant Attorney General
                                                FSM Department of Justice
                                                P.O. Box PS-105
                                                Palikir, Pohnpei FM 96941
 
For the Defendant:                Joey J. Sapelalut, Esq.
                                               Office of the Public Defender
                                               P.O. Box PS-174
                                               Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure ) Motions
     Although failure to oppose a motion is generally deemed a consent to a motion, even if there is no opposition, the court still needs good grounds before it can grant the motion. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     Appellate Rule 9(c) sets the criteria for release pending appeal in a criminal case, and the burden of establishing the requisite criteria rests with the defendant. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     To grant a release pending appeal, the court first must conclude that one or more release conditions will reasonably assure that the appellant will not flee or pose a danger to another person or the community, and then the movant must establish that the appeal is not for purpose of delay and that

[12 FSM Intrm. 510]

it raises a substantial question of law or fact likely to result in either 1) a reversal; 2) an order for a new trial; 3) a sentence that does not include a term of imprisonment; or 4) a reduced sentence to a term of imprisonment less than the total of the time already served. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     The release of a prisoner is not automatic once a notice of appeal and a motion for release have been filed. The prisoner must establish the requisite criteria exist under Appellate Rule 9(c). FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Criminal Law and Procedure ) Motions
     A moving partyís failure to file a memorandum of points and authorities in support of a motion is deemed the moving partyís waiver of the motion. FSM v. Moses, 12 FSM Intrm. 509, 511 n.1 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     When a criminal defendant wants to be released pending appeal but his appeal does not raise any substantial question likely to obtain the result sought by the appeal, the court may draw the inference that the appeal was brought for the purpose of delay. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     A stay of sentence pending appeal is not automatic upon the filing of a notice of appeal and a motion to stay, but rests on the courtís discretion. FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing
     The court may, in its discretion, stay pending appeal upon such terms as the court deems proper, an order for restitution, but the court may require the defendant pending appeal to deposit the whole or any part of the fine, restitution or costs in the registry of the trial court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets. The court may invite the movant and the government to submit their views on the advisability, if restitution is stayed, of an order that while the appeal is pending the restitution be paid into the courtís registry to remain there in an interest-bearing account until the appeal is decided. FSM v. Moses, 12 FSM Intrm. 509, 512 (Chk. 2004).
 
Appellate Review ) Stay; Criminal Law and Procedure ) Sentencing ) Probation
     An order placing a defendant on probation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of probation will commence. If the order is stayed, the court must fix the terms of the stay. FSM v. Moses, 12 FSM Intrm. 509, 512 (Chk. 2004).

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COURTíS OPINION

MARTIN G. YINUG, Associate Justice:

     On June 21, 2004, defendant Kimis Moses filed his Motion to Stay Judgment and Execution of Sentence Pending Appeal and his Motion for Release Pending Appeal from Judgment of Conviction. The accompanying certificate of service states that the motions were served on prosecutor Matthew Crabtrree at his Palikir office on June 18, 2004.

[12 FSM Intrm. 511]

     The motion for release cites that Kimis Moses was convicted of one count of conspiracy, states the terms of his sentence, and recites that he filed his notice of appeal on June 9, 2004. It does not contain anything else. His motion to stay again cites his conviction and sentence and also quotes the provisions of Criminal Rule 38 that permit the court, in its discretion, to stay its sentence. No other points are discussed or authorities cited.

     No opposition has been filed. Although failure to oppose a motion is generally deemed a consent to a motion, FSM Crim. R. 45(d), even if there is no opposition, the court still needs good grounds before it can grant the motion. Cf. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

I. Motion for Release Pending Appeal

     Appellate Rule 9(c) sets the criteria for release pending appeal in a criminal case. "`The burden of establishing the requisite criteria rests with the defendant.í" FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998) (quoting FSM App. R. 9(c)). To grant a release, the court first must conclude that one or more release conditions will reasonably assure that the appellant will not flee or pose a danger to another person or the community. Although not raised by the movant, even if it were possible that the court could be satisfied on this point by taking judicial notice of defendant Mosesís conduct during his pretrial release, the movant, however, must also establish the other criteria as well. The movant must establish that "the appeal is not for purpose of delay" and that it "raises a substantial question of law or fact" likely to result in either "(1) a reversal; (2) an order for a new trial; (3) a sentence that does not include a term of imprisonment; or (4) a reduced sentence to a term of imprisonment less than the total of the time already served." FSM App. R. 9(c). The release of a prisoner is not automatic once a notice of appeal and a motion of release have been filed. The prisoner must establish the requisite criteria exist under Appellate Rule 9(c).

     Not only has defendant Moses failed to meet his burden to establish that the appeal is not for purpose of delay and that it raises a substantial question of law or fact, his motion does not even attempt to establish that his appeal meets these criteria.1 Moses not having provided any grounds on which his motion could be granted, the motion for release must be denied. FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001). The court notes that when a criminal defendant wants to be released pending appeal but his appeal does not raise any substantial question likely to obtain the result sought by the appeal, the court may draw the inference that it was brought for the purpose of delay. Id. at 257. Defendant Moses may therefore renew the motion for release, and support it with points and authorities that address the criteria established by Appellate Rule 9(c). Moses may also propose release conditions that will reasonably assure the court that he will not flee the jurisdiction while the appeal is pending.

II. Motion to Stay

     In addition to seeking release from imprisonment pending appeal, Moses also seeks a stay of payment of $3,833.48 restitution (at the rate of no less than $128 per month or $383 per quarter until paid) that was ordered by the court and a stay of his suspended sentence and imposition of probation. A stay of sentence pending appeal is not automatic upon the filing of a notice of appeal and a motion to stay, but rests on the courtís discretion.

[12 FSM Intrm. 512]

     The court may, in its discretion, stay pending appeal, upon such terms as the court deems proper, an order for restitution. However,

[t]he court may require the defendant pending appeal to deposit the whole or any part of the fine, restitution or costs in the registry of the trial court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.

FSM Crim. R. 38(a)(3). Before considering the requested stay of restitution, the court invites the movant and the government to submit, by filing and serving no later than July 9, 2004, their views on the advisability, if restitution is stayed, of an order that while the appeal is pending the restitution be paid into the courtís registry to remain there in an interest-bearing account until the appeal is decided.2 The court will then consider and rule on the motion.

     The bulk of Mosesís sentence was suspended and probation imposed for the time of the suspension. The court also has the authority to stay the imposition of probation. "An order placing the defendant on probation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of probation shall commence. If the order is stayed the court shall fix the terms of the stay." FSM Crim. R. 38(a)(4). The movant has not stated the terms he seeks of the stay. The court seeks further information from the movant regarding his probation. The movant shall have until July 9, 2004 to file and serve his suggested terms of stay and points and authorities in support thereof.

III. Conclusion

     The motion for release pending appeal is denied for failure to address and establish the criteria for release. The motion may be renewed. The motion for stay is held in abeyance to allow for further submissions and to permit the movant to supplement his motion, to be filed and served no later than July 9, 2004.

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Footnotes:

1. Furthermore, the moving partyís failure to file a memorandum of points and authorities in support of a motion is deemed the moving partyís waiver of the motion. FSM Crim. R. 45(d).

2Thus, if Moses obtains a either reversal or an order for a new trial, the sums on deposit in the courtís registry would be returned to him. If he does not obtain either result, the funds then would be turned over to the government.