KOSRAE STATE COURT
FEDERATED STATE OF MICRONESIA
Cite as Kosrae v. Benjamin , Kosrae St.(1989)

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KOSRAE STATE,
Plaintiff

vs

KERICK BENJAMIN,
Defendant

CRIMINAL CASE NO. 15-89

ORDER


     On August 21, 1989, this matter came on for trial. The plaintiff was represented by its counsel, Aliksa B. Aliksa and the defendant was present and represented by his counsel, Patrick Olter.

     Prior to the commencement of the trial, counsel for the defendant moved that the case be dismissed alleging that his client would be twice put in jeopardy for the same offense in violation of Section 1(f) of Article II of the Kosrae Constitution if the trial were to proceed.

FACTUAL BACKGROUND

     On July 6, 1988, (in Criminal Case No. 82-88), the defendant pled guilty to a charge of Assault and Battery under KC 13.303. As part of his sentence, the defendant was placed on a one year suspended sentence upon the condition that he not "consume alcoholic beverages for one year."


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     On December 31, 1988 the defendant was arrested and charged with a number of offenses including violation of KC 13.710, Driving Under the Influence of Alcohol. However, an information was not filed until 3/29/89.

     On March 31, 1989, a hearing was held in Criminal Case No. 82-88 to determine whether the defendant had violated the condition of his suspended sentence, and if so, whether he should have the suspension revoked and be required to spent the time remaining on his sentence in jail.

     At the March 31, 1989 hearing, this.Court found that the evidence was insufficient to prove that the defendant consumed alcoholic beverages and therefore declined to revoke the defendant's suspended sentence. No changes were made with respect to the terms of the defendant's suspended sentence.


     On March 29, 1989, the plaintiff filed an information (in this Criminal Case No. 15-89) charging the defendant with violation of KC 13.710 (Driving Under the Influence) and 13.708 (Negligent Driving) regarding events allegedly occurring on December 31, 1988.
On June 22, 1989, the defendant was arraigned on these two charges and entered pleas of not guilty to both charges. Subsequently, trial on these two charges was set for August 21, 1989.


ISSUES

If the defendant is compelled to stand trial in this case for criminal offenses allegedly occurring on December 31, 1988,

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will it constitute twice putting the defendant in jeopardy for the same offense in violation of Section 1(f) of Article II of the Kosrae Constitution?

REASONING

     When the defendant appeared before this Court on March 31, 1989 in Criminal Case No. 82-88, the purpose was to determine whether the defendant violated the condition of his suspended sentence prohibiting his consumption of alcoholic beverages. He was not on trial for or in jeopardy of being convicted for any criminal offense allegedly occurring on December 31, 1988.


     Section 1(f) of Article II of the Kosrae Constitution provides:

"a person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense." (emphasis added).


     The purpose of the hearing was not to determine whether the defendant was guilty of the crime of Driving under the Influence in violation of KC 13.710 or any other crime. Rather, the purpose was to determine the factual issue of whether the defendant had consumed alcoholic beverages within a certain time period (which, by itself, is not a crime).

ANALYSIS

     Since the defendant was not in jeopardy of being convicted of a crime at the hearing on March 31, 1989, it cannot be said that when defendant appeared for trial for the first time on

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August 21, 1989, for offenses allegedly occurring on December 31, 1988, that he was being "twice put in jeopardy for the same offense".


CONCLUSION

     Since the defendant was not twice put in jeopardy for the same offense when he was scheduled to be tried on August 21, 1989, the defendant's motion to dismiss should be denied.

     The trial will be reset upon further notice of this Court.

     SO ORDERED this 10th day of October, 1989.

                                   /s/              
                              Harry H. Skilling
                              Chief Justice

Entered this 10th day of October, 1989.

                                   /s/               
                         Chief Clerk of Court, Kosrae


                                                                                                                                                                                                                                                                                                           
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