FSM SUPREME COURT APPELLATE DIVISION
Cite as Robert v. Kosrae
12 FSM Intrm. 523 (App. 2004)

[12 FSM Intrm. 523]

BEUDAN R. ROBERT,
Appellant,
 
vs.
 
STATE OF KOSRAE,
Appellee.
 
APPEAL CASE NO. K1-2004
KOSRAE CRIMINAL CASE NO. 55-2004
 
ORDER GRANTING RELEASE PENDING APPEAL
 
Andon L. Amaraich
Chief Justice
 
Decided: June 16, 2004

APPEARANCE:

For the Appellant:                      Harry Seymour, Esq.
                                                   Office of the Public Defender
                                                   P.O. Box 245
                                                   Lelu, Kosrae FM 96944

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HEADNOTES

Appellate Review ) Decisions Reviewable; Bail
      A defendant may appeal from an interlocutory order denying him bail. Robert v. Kosrae, 12 FSM Intrm. 523, 524 (App. 2004).
 
Bail
     While denial of bail because a defendant, who was charged with driving under the influence, posed a danger to the community since he might operate a vehicle under the influence at some point in the future may possibly be correct under Kosrae Criminal Procedure Rule 46(a)(1), it contravenes Kosrae State Code Section 6.401, which permits a court to deny a defendant bail only if the defendant is intoxicated and will be offensive to the general public. Robert v. Kosrae, 12 FSM Intrm. 523, 524 (App. 2004).
 
Bail
     Rules of procedure generally may not abridge substantive rights created by statute. Thus, to the extent Kosrae Criminal Procedure Rule 46(a)(1) purports to abridge a defendantís right to bail under Kosrae State Code Section 6.401, the Rule is likely void and of no effect. Robert v. Kosrae, 12 FSM Intrm. 523, 524 (App. 2004).
 
Appellate Review ) Stay; Bail
     When the trial courtís decision to deny a defendant bail under Kosrae Rule of Criminal Procedure
 
[12 FSM Intrm. 524]
 
46(a)(1) even though Section 6.401 appears to have entitled him to bail may be error, given the likelihood that the defendant will prevail on the merits of his appeal, he may be released from incarceration pending the outcome of his appeal. Robert v. Kosrae, 12 FSM Intrm. 523, 524 (App. 2004).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

I.

     Pursuant to Rule of Appellate Procedure 9(a), Defendant-Appellant Beudan R. Robert appeals from an interlocutory order of the Trial Division of the Kosrae State Court denying him bail. The Trial Division appears to have denied bail under Kosrae Rule of Criminal Procedure 46(a)(1) reasoning that Robert, who was charged with driving under the influence, posed a danger to the community because he might operate a vehicle under the influence at some point in the future. This result, although possibly correct under Kosrae Rule of Criminal Procedure 46(a)(1), contravenes Section 6.401 of the Kosrae State Code, which permits a court to deny a defendant bail only if the defendant is intoxicated and will be offensive to the general public )   findings that the trial judge did not make.

     Rules of procedure generally may not abridge substantive rights created by statute. Thus, to the extent Kosrae Rule of Criminal Procedure 46(a)(1) purports to abridge a defendantís right to bail under Section 6.401 of the Kosrae State Code, the Rule is likely void and of no effect. Concomitantly, the Trial Divisionís decision in this case to deny Robert bail under Kosrae Rule of Criminal Procedure 46(a)(1) even though Section 6.401 appears to have entitled Robert to bail may also be error.

II.

     Given the likelihood that Defendant Robert will prevail on the merits of his appeal, it is hereby ordered that Defendant Beudan R. Robert be released from incarceration pending the outcome of his appeal. See FSM App. R. 9(a) ("The appellate division or a justice thereof may order the release of the appellant pending . . . appeal.").

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