THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Nimwes v. FSM ,
8 FSM Intrm. 297 (App. 1998)

[8 FSM Intrm. 297]

CHUTOMU NIMWES,
Appellant,
vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. C1-1998
[on appeal from Crim Case No. 1997-1501]

ORDER

Andon L. Amaraich
Chief Justice

Decided:  April 9, 1998

For the Appellant:     Ready Johnny, Esq.
                     Office of the Public Defender
                     P.O. Box 754
                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTE
Appeal and Certiorari ) Stay; Bail
     The FSM Supreme Court appellate division has no authority to review an application for release from jail pending appeal until the court appealed from has refused release or imposed conditions.  Nimwes v. FSM, 8 FSM Intrm. 297, 298-99 (App. 1998).

[8 FSM Intrm. 298]
*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter comes before the Appellate Division on appellant's April 9, 1998, Motion to Stay Sentence and Order for Release Pending Appeal.  Because appellant's motion is premature under Rule 9(b) of the FSM Rules of Appellate Procedure, that motion is denied.

Discussion
     On April 3, 1998, appellant Chutomu Nimwes filed a Notice of Appeal from that portion of the FSM Supreme Court Trial Division's April 2, 1998 order that sentenced him to four months incarceration in the Chuuk State Jail.  Appellant's sentence was to commence on April 6, 1998 at 2:00 p.m.  On April 3, 1998, appellant also filed a Motion to Stay Execution of Sentence of Incarceration Pending Appeal with the Trial Division of the FSM Supreme Court.

     Subsequently, on April 9, 1998, appellant filed a Motion to Stay Sentence and Order for Release Pending Appeal with the Appellate Division of the FSM Supreme Court.  That motion seeks essentially the same relief appellant has requested of the Trial Division ) a stay of the Trial Division's sentence of incarceration and release from incarceration pending the disposition of appellant's appeal.

     In support of his April 9, 1998 motion, appellant argues that his Motion to Stay was filed with the Trial Division on April 3, 1998.  Despite the fact that commitment to prison occurred on April 6, 1998, the Trial Division still has not ruled on appellant's motion.  Appellant expresses his concern that the trial court judge who issued his judgment of conviction and sentencing order left Chuuk on April 8, 1998, and may not return for a month.  Appellant has already surrendered himself into custody, as directed by the Trial Division's April 2, 1998 order, and believes that his appeal will be meaningless if his sentence is not stayed pending his appeal.  His appeal challenges the Trial Division's sentence of incarceration as both an abuse of discretion, given appellant's health, and a violation of the constitutional prohibition on cruel and unusual punishment.

     In support of his motion for a stay, appellant cites Rule 38(a) of the FSM Rules of Criminal Procedure and Rule 9(b) of the FSM Rules of Appellate Procedure. FSM Rule of Appellate Procedure 9(b) states in part as follows:

(b)  RELEASE PENDING APPEAL FROM A JUDGMENT OF CONVICTION.  Application for release after a judgment of conviction shall be made in the first instance in the court appealed from.  If the court appealed from refuses release pending appeal, or imposes conditions of release, that court shall state orally on the record or in writing the reasons for the action taken.  Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the Supreme Court appellate division or to a justice thereof.

(emphasis added).  Appellant properly filed his application for release in the first instance with the court whose order he appeals ) the FSM Supreme Court Trial Division in Chuuk.  That court has not yet refused appellant's request for release pending appeal.  The Appellate Division has been informed that the justice who presided over appellant's case before the Trial Division is fully aware that appellant's April 3, 1998 Motion to Stay Execution of Sentence of Incarceration Pending Appeal is now pending before the Trial Division.  The Court has been further informed that that justice is in close contact with his office and is capable of making rulings on pending motions during his physical absence from Chuuk State.

[8 FSM Intrm. 299]

     Until the Trial Division has acted on appellant's Motion to Stay, by refusing release or imposing conditions of release and placing the reasons for its actions on the record, under FSM Appellate Rule 9(b) the Appellate Division has no authority to review the application for release pending appeal that the appellant has made to this Court.  See FSM Crim. R. 38(a); FSM App. R. 9(b). Accordingly, appellant's Motion to Stay Sentence and Order for Release Pending Appeal is premature and must be denied.

Conclusion
     Appellant's Motion to Stay Sentence and Order for Release Pending Appeal is hereby denied.
                                                                                                                                                                                                                                                                                                           
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