THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Faen ,
9 FSM Intrm. 416 (Yap 2000)

[9 FSM Intrm. 416]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PETRA FAEN,
Defendant.

CRIMINAL CASE NO. 1998-3500

ORDER DENYING MOTION FOR RECONSIDERATION

Richard H. Benson
Associate Justice

Decided:  June 9, 2000

APPEARANCES:
For the Plaintiff:          Jennifer Link, Esq.
(FSM)                          Yap State Attorney General's Office
                                     P.O. Box 435
                                     Colonia, Yap FM 96943

For the Defendant:     Beauleen Carl-Worswick, Esq.
                                     FSM Public Defender
                                     P.O. Box PS-174
                                     Palikir, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure ) Sentencing
     FSM Criminal Rule 35 permits the sentencing judge to reduce a sentence within 120 days after sentence is imposed.  FSM v. Faen, 9 FSM Intrm. 416, 417 (Yap 2000).

Criminal Law and Procedure ) Sentencing
     Although the court may reduce a sentence simply because it has changed its mind, it usually will not do so where nothing is shown to justify a reduced sentence that was not already considered by the court when the initial sentence was fixed.  FSM v. Faen, 9 FSM Intrm. 416, 417 (Yap 2000).

Criminal Law and Procedure ) Sentencing
     Occasions will arise when a conscientious judge, after reflection or upon receipt of new probation reports or other information, will feel that he has been too harsh or has failed to give weight to mitigating factors which properly should have been taken into account.  FSM v. Faen, 9 FSM Intrm. 416, 417 (Yap 2000).

[9 FSM Intrm. 417]

Criminal Law and Procedure ) Sentencing
     While it is a sobering fact that any incarceration will interrupt family life, that fact alone, however, does not constitute a basis upon which to reduce defendant's sentence when the court was aware of the defendant's family situation at the time of sentencing, and the motion for reconsideration presents nothing that could not have been presented then.  FSM v. Faen, 9 FSM Intrm. 416, 417 (Yap 2000).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Today, June 9, 2000, defendant filed her motion for reconsideration pursuant to Rule 35(b) of the FSM Rules of Criminal Procedure.  She has also asked for an expedited determination of the motion before the close of business today.

     Defendant asks the court to reconsider its two-year sentencing order of June 7, 2000, entered today.  At the time of the filing of the motion for reconsideration, defendant tendered to the court's justice ombudsman the entire amount of the restitution.

     FSM Criminal Rule 35 permits the sentencing judge to reduce a sentence within 120 days after sentence is imposed.  "The court may reduce the sentence simply because it has changed its mind, but usually will not do so where nothing is shown to justify a reduced sentence that was not already considered by the court when the initial sentence was fixed."  3 Charles Alan Wright, Federal Practice and Procedure 586, at 401-04 (2d ed. 1982) (footnote omitted); see United States v. Sandborn, 738 F. Supp. 231, 232 (W.D. Mich. 1990) (holding that defendant was not entitled to a reduction where the motion presented the same arguments made at the time of sentencing).  As one commentator has briefly elaborated, "[i]t is said that occasions will arise where a conscientious judge, after reflection or upon receipt of new probation reports or other information, will feel that he has been too harsh or has failed to give weight to mitigating factors which properly should have been taken into account."  Phillip E. Hassman, Reduction of Sentences Imposed by Federal District Court Under Rule 35 of Federal Rules of Criminal Procedure, 32 A.L.R. Fed. 914, 918 (1977) (citing ABA Standards Relating to Sentencing Alternatives and Procedures 6.1 cmt. (Approved Draft 1968)).

     Defendant cites hardship to herself and her children in the event that she is incarcerated, and asks that the court impose house arrest in lieu of the incarceration.  The court was aware of the defendant's family situation at the time of sentencing, and the motion for reconsideration presents nothing that could not have been presented two days ago.  It is a sobering fact that any incarceration will interrupt family life.  That fact alone, however, does not constitute a basis upon which to reduce defendant's sentence.

     It remains my considered judgment that the defendant should be incarcerated for one month in the Yap state jail, with the remainder of defendant's two year sentence to be suspended.  Since the defendant has paid the restitution in full, that part of the order entered earlier today imposing a period of probation of 48 months during which the defendant was to make payments on the restitution is vacated.

     Accordingly, the motion for reconsideration is denied, with the exception relating to probation as just noted.
                                                                                                                                                                                                                                                                                                           
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