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ANDON L. AMARAICH, Chief Justice:
This came before the court on December 20, 2004 for hearing on the defendantís Motion for Stay, filed August 3, 2004, and on the governmentís Motion to Revoke Probation, filed September 23, 2004, and on the various papers filed by both parties in regard to those two motions. The court ruled from the bench that a valid notice of appeal had been filed; that the motion to stay was not validly before the court because of technical defects; that, by operation of Criminal Rule 38(a)(4), a stay of the sentence of probation had been in effect; that the sentence of probation had not started because, among other things, the court had not yet set a starting date; and that, because the defendant was not yet serving his sentence of probation, he could not be charged with violating that probation; that the defendantís one year term of probation would start January 1, 2005 and run for one year. This memorandum memorializes and enters those orders.
On August 3, 2004, defendant Jack Fritz filed a notice of appeal and a motion to stay his sentence. This was after the courtís decision was announced on August 3, 2004, but before sentence was imposed and judgment entered. On August 20, 2004, the court pronounced its sentence, which was a $4,000 fine and one year on probation with conditions. The notice of appeal took effect when judgment was entered and filed on August 23, 2004. FSM App. R. 4(b) (for purpose of validating notices of appeal filed after the decision is announced but before judgment is entered, a judgment is entered "when it is filed").
By order of August 3, 2004, the court instructed Fritz that his "Motion for Stay of Execution [wa]s premature and must be renewed or supplemented after sentencing." The motion to stay, which only contained two sentences and no points and authorities, was not renewed after the sentence was pronounced. Nor was it later supplemented with points and authorities. The motion to stay is therefore deemed waived by the movant. "A written motion . . . shall be served, with a memorandum of points and authorities . . . . Failure by the moving party to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion . . . ." FSM Crim. R. 45(d). Fritz having waived his motion, there was no motion to stay pending before the court.
Whether Fritzís sentence of probation had started yet was a question that involved the interpretation of several FSM Criminal Procedure Rules which had not previously been interpreted. Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courtsí decisions, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, FSM v. Wainit, 11 FSM Intrm. 1, 11 n.2 (Chk. 2002); see also Engichy v. FSM, 1 FSM Intrm. 532, 541-42 (App. 1984) (using U.S. cases to interpret FSM Criminal Procedure Rule 7 because it is based on Criminal Procedure Rule 7 used by the U.S. federal courts).
Generally, a criminal sentence starts when it is pronounced from the bench unless the sentence
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contains a provision that the sentence starts at some later time1 . A jail sentence starts to run the date the defendant is received at the jail or other place of detention. 3 Charles Alan Wright, Federal Practice and Procedure ß 528, at 130 (1982) (discussing U.S. Federal Rule of Criminal Procedure 32 which is similar to FSM Rule 32). "In most instances in which a court orders probation, defendant is placed on probation without any intervening imprisonment or delay." Id. ß 529, at 144. A court often orders "delayed probation," but this is when the probationary period is to start after the defendant has completed a sentence of imprisonment for some other crime. Id. However, these statements in regard to Criminal Rule 32 do not apply when the sentence is probation and an appeal is sought. FSM Criminal Rule 38(a)(4) applies.
No FSM case has had the occasion to construe Criminal Rule 38(a)(4). The court may therefore look to U.S. sources for guidance in interpreting the rule. Under the original U.S. Criminal Procedure Rule 38(a)(4), a sentence "placing a defendant on probation was automatically stayed by the taking of an appeal." 3 Wright, supra, ß 635, at 545 (footnote omitted) (discussing U.S. Criminal Procedure Rule 38(a)(4)).
That rule was altered in 1972 to make it "discretionary with the court whether to stay the commencement of probation." Id. The 1972 version of U.S. Criminal Rule 38(a)(4) rule was adopted verbatim in the FSM when the FSM criminal rules were first adopted. It provides that: "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).
In United States v. Bishop, 537 F.2d 1184, 1186 (4th Cir. 1976) the "government . . . assume[d] that when a sentence of probation is imposed which is not stayed, it will always begin at the time of sentencing." The court rejected the governmentís assumption on the ground that if such were the case then Rule 38(a)(4)ís requirement "would be superfluous." Id. The court held that Rule 38(a)(4) "plainly contemplates that in some cases probation will not be stayed, yet not begin immediately." Id. The court concluded that the record "should explicitly reflect the starting date." Id.
Therefore in the 1972 U.S. version, and thus in the FSM version, of Rule 38(a)(4), when the sentence was probation an automatic stay pending appeal remained in effect until a starting date was set for probation to begin. If a motion to stay was filed, the court would not set a starting date until the defendantís motion for a stay was either granted (in which case the terms of that stay order would take effect) or denied (in which case a starting date would be set for probation to begin)2. Conceivably, the court could set a starting date that came before the court was able to rule on the motion to stay.
In such a circumstance, the probation would start and then a stay would be either granted or denied.
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Based on Rule 38(a)(4)ís "legislative history" and its second sentenceís wording, the court thus concluded that, under Rule 38(a)(4), a sentence of probation is automatically stayed upon appeal until a starting date for probation is explicitly set by the court. As a general rule, the court must explicitly state when the probation period starts and, until it does, a sentence of probation will not start.
Since, originally no time for the start of probation was set in the sentence, either orally from the bench, or later in the written Judgment of Conviction and Sentencing Order, the defendantís probationary period had not started.
The court therefore set January 1, 2005 as the starting date of Fritzís sentence of probation, which was pronounced in open court on August 20, 2004, and memorialized in a written sentencing order and judgment of conviction entered on August 23, 2004. The conditions of probation are those pronounced in open court on August 20, 2004, and then memorialized on August 23, 2004. The only addition is that the starting date is now explicitly set.
Since Fritzís period of probation had not yet started, the court concluded that a motion to revoke probation for acts alleged to have occurred in September, 2004 when Fritz was not yet subject to probation, had to be denied without hearing the merits.
The government cited FSM v. Dores, 1 FSM Intrm. 580 (Pon. 1984) for the proposition that under FSM case law probation may be revoked for acts that took place before the sentence of probation has started. The government relied on the following statement from that case: "[C]ourts have had little difficulty in rejecting the argument that it is impossible then to violate conditions of probation because those conditions become effective only when the probation starts. Courts have uniformly held that sound policy requires that they be able to revoke probation for a defendantís offense committed before the sentence commences." Id. at 586.
In Dores, both the defendant and the government had stipulated to a plea agreement that was accepted by the court. That agreement "stipulated that the court was to defer acceptance of the assault with a dangerous weapon guilty plea subject to certain conditions, one of which was that Ďthe defendant shall abstain from all criminal conduct.í" Id. at 582. That is not this case. In this case, the defendant was convicted and a sentence was imposed, but for the reasons explained above, had not yet started.
The Dores court concluded that since the parties had agreed and the court had accepted the plea agreement under Rule 11(e)(1)(C), "the defendant, the prosecution and the Court had all bound themselves to carry out the terms of the plea agreement." Dores, 1 FSM Intrm. at 585. Since "[f]rom that point on, Andonio Dores was entitled to the benefit of the bargain reflected in his plea agreement[, f]airness demand[ed] that the government likewise be entitled to enforce his promises." Id. The court therefore accepted the defendantís guilty plea, revoked the agreement, and prepared to sentence the defendant on the charges. Id. at 585-86. Although the Dores court concluded that it had the power to do so based on mutuality and fairness, it also noted that "that in a somewhat parallel area, revocation of probation before the probation actually started, other courts have had little difficulty in rejecting the argument that it is impossible then to violate conditions of probation because those conditions become effective only when the probation starts." Id. at 585. That statement appears to be dicta) not necessary to that courtís decision.
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The Dores decision was a trial court opinion twenty years ago. The court is not bound by another trial courtís decision (especially when the portion of that decision that directly relates to this case may be dicta) as it would be bound by an appellate division decision. The court has independently concluded that it cannot revoke a sentence of probation for acts that took place before the sentence started. The courtís holding is in accord with State v. DeAngelis, 183 S.E.2d 906, 908-09 (S.C. 1971) (defendant given 120 days to get affairs in order before starting a jail sentence to be followed by a term of probation; trial judge revoked probation for offense that took place during the 120-day period; revocation reversed since new offense took place when defendant was not on probation). "[P]robation cannot be revoked upon the basis of a probation violation occurring before [defendant] was placed on probation." Bell v. State, 656 S.W.2d 502, 505 (Tex. Ct. App. 1982) (order granting probation was entered Aug. 10,1980, but judgment not entered until Nov. 25, 1980; probation revocation reversed because revocation was for acts that took place before probation started once judgment entered) (citing Littlefield v. State, 586 S.W.2d 534, 535 (Tex. Ct. App. 1979)). An appellate court ruling clarifying this area of the law may be helpful.
Accordingly, the court did not go forward with the revocation hearing as there was no probation to revoke. Fritz could not have violated his condition of probation if he was not yet on probation.
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1. A sentence is imposed when it is pronounced in open court. This is a constitutional as well as procedural requirement. The rules require the defendantís presence at sentencing. FSM Crim. R. 43(a). This is also required by the FSM constitutional provision, FSM Const. art. IV, ß 6, requiring a public trial and giving a defendant the right to confront witness against him. See, e.g., United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994); United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987) (relying on similar provision in U.S. Constitution). A written sentence must conform to the one delivered orally. If it does not, the oral sentence controls.
2. The U.S. eliminated this remaining automatic stay when it revised their criminal rules in 1987 by deleting Rule 38(a)(4)ís second sentence. See 3 Charles Alan Wright, Federal Practice and Procedure ß 635 (Supp. 2001). (It also renumbered the Rule as 38(d).) When the FSM Criminal Rules were revised in 1990, a number of substantive changes were made, see FSM GCO 1990-2, but Rule 38(a)(4) was not revised.