FSM SUPREME COURT APPELLATE DIVISION

Cite as Wainit v. FSM, 14 FSM Intrm. 476 (App. 2006)

[14 FSM Intrm. 476]

TADASHI WAINIT,

Appellant,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

C2-2006 (CRIMINAL CASE NO. 2004-1513)

ORDER DENYING REQUEST FOR RELEASE PENDING APPEAL

Decided: October 26, 2006

BEFORE:

     Hon. Alfred T. Goodwin, Specially Assigned Justice, Presiding*

     Hon. Aliksa B. Aliksa, Specially Assigned Justice**

     Hon. Benjamin Rodriguez, Specially Assigned Justice***

           *Senior Judge, United States Ninth Circuit Court of Appeals

           **Chief Justice, Kosrae State Court, Lelu, Kosrae

           ***Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

 

[14 FSM Intrm. 477]

 

APPEARANCES:

For the Appellant:    Stephen V. Finnen, Esq.

                                 P.O. Box 1450

                                 Kolonia, Pohnpei   FM   96941

 

For the Appellee:      Matthew L. Olmsted, Esq.

                                 Assistant Attorney General

                                 FSM Department of Justice

                                 P.O. Box PS-105

                                 Palikir, Pohnpei   FM   96941

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HEADNOTES

Constitutional Law ) Case or Dispute ) Mootness

    A case becomes moot when the party raising an issue lacks a legally cognizable interest in the outcome of the issue, and if the relief sought would, if granted, be ineffectual. Wainit v. FSM, 14 FSM Intrm. 476, 478 (App. 2006).

Appellate Review ) Dismissal; Constitutional Law ) Case or Dispute ) Mootness

    No justiciable controversy is presented if events subsequent to the filing of an appeal make the issues presented moot. The FSM Supreme Court lacks jurisdiction to consider cases or issues that are moot, and therefore must dismiss or deny the same. Wainit v. FSM, 14 FSM Intrm. 476, 478 (App. 2006).

Appellate Review ) Stay ) Criminal Cases; Constitutional Law ) Case or Dispute ) Mootness

    When the appellant has been released from jail on parole, any relief that the appellate court could grant the appellant on his request for release pending the outcome of his appeal, would be entirely ineffectual. As such, the appellant’s request for release pending appeal is moot and will be denied as moot. Wainit v. FSM, 14 FSM Intrm. 476, 478 (App. 2006).

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COURT’S OPINION

PER CURIAM:

    This matter comes before the Court on the Appellant’s request for release pending the outcome of his appeal. The Appellee has filed its opposition to this request; the Appellant, in turn, has filed a reply pleading. For the reasons set forth below, the Appellant’s request for release pending appeal is denied as moot.

    Previously, on March 10, 2006, the Appellant, who was convicted of violating 11 F.S.M.C. 701(1) and sentenced to a term of one (1) year in jail, applied for release pending his appeal. Pursuant to FSM Appellate Rule 9, that request was, in the first instance, made to the trial court judge who convicted and sentenced the Appellant. The Appellant’s request was denied on April 3, 2006. [FSM v. Wainit, 14 FSM Intrm. 164 (Chk. 2006).]

    Thereafter, and also on April 3, 3006, the Appellant applied to this Court for release pending the

[14 FSM Intrm. 478]

outcome of his appeal. As is provided for under FSM Appellate Rule 27(c), a single appellate justice considered that request. On April 18, 2006, that single appellate justice issued an order denying the Appellant’s request for release. [Wainit v. FSM, 14 FSM Intrm. 193 (App. 2006).] Thereafter, on June 20, 2006, that justice recused himself from this case.

    On June 22, 2006, the Appellant requested that the entire appellate panel in this case consider his request for release pending appeal. FSM App. R. 27(c). The Appellee, in addition to previously opposing the Appellant’s request for release, also opposed the Appellant’s request that the entire appellate panel review his request for release.

    However, at the time the Appellant requested the full appellate panel to consider his request for release pending appeal there were no justices presiding over this case. Indeed, it was not until October 9, 2006, that three (3) justices were appointed to preside over this appeal.

    In the meantime, on August 11, 2006, the Appellant, having served one-third of his one-year sentence, applied to the trial court for parole under General Court Order 1999-1. On September 26, 2006, the trial court granted the Appellants’ request for parole, and the Appellant was released from jail on October 18, 2006. At this time, the Appellant is no longer incarcerated.

    A case becomes moot when the party raising an issue lacks a legally cognizable interest in the outcome of the issue, and if the relief sought would, if granted, be ineffectual. FSM v. Udot Municipality, 12 FSM Intrm. 29, 42 (App. 2003). See Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995). No justiciable controversy is presented if events subsequent to the filing of an appeal make the issues presented moot. Reddy v. Kosrae, 11 FSM Intrm. 595, 596-97 (App. 2003). See McIlrath v. Amaraich, 11 FSM Intrm. 502, 506 (App. 2003). This Court lacks jurisdiction to consider cases or issues that are moot, and therefore must dismiss or deny the same. Fritz v. National Election Dir., 11 FSM Intrm. 442, 444 (App. 2003).

    In the matter at hand, in light of the Appellant’s release from jail, any relief that this Court could grant the Appellant, including releasing him pending the outcome of his appeal, would be entirely ineffectual. As such, the Appellant’s request for release pending appeal is moot. Accordingly, the Appellant’s request for release pending the outcome of his appeal is denied, as moot.

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