4 FSM Intrm. 180 (Pon. 1990)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

FSM CRIMINAL CASE NO. 1985‑516

FEDERATED STATES OF MICRONESIA
Plaintiff

V

MARKUS LIKITIMUS
Defendant

BEFORE: Edward C. King, Chief Justice, FSM Supreme Court

APPEARANCES: For the Plaintiff: Daniel J. Berman, Acting State Attorney, Kolonia, Pohnpei; For the Defendant: Joseph Phillip, State Public Defender, Kolonia, Pohnpei

OPINION: January 11, 1990

HEADNOTES

Criminal Law and Procedure ‑ Sentencing
 In the absence of authority derived from the Constitution, statutes or court rules, judges of the FSM Supreme Court are bound by their own sentencing orders arrived at through the normal exercise of criminal jurisdiction. FSM v. Likitimus, 4 FSM Intrm. 180, 181 (Pon. 1990).

Criminal Law and Procedure ‑ Sentencing
 The trial division of the FSM Supreme Court has no power to amend its sentences at will. FSM v. Likitimus, 4 FSM Intrm. 180, 181 (Pon. 1990).

COURT'S OPINION

EDWARD C. KING, Chief Justice:

Defendant Markus Likitimus seeks an order granting him work release while his sentence for confinement in jail remains in effect.

This court is granted authority by Rule 35 of the Rules of Criminal Procedure to reduce a sentence anytime within 120 days after the sentence is imposed. That rule does not apply, for Mr. Likitimus was sentenced on December 13, 1985. The 120‑day period for modification under Rule 35 has long expired.

In addition, 11 F.S.M.C. 1401, [Public Law No. 5‑24 (5th Cong., 1st Spec. Sess. 1987)] authorizes the court to review a sentence of a prisoner who has served one‑third of his sentence. The defense does not contend that the statute is applicable to Mr. Likitimus.

Instead, the movant relies exclusively upon the case of Soares v. FSM, 4 FSM Intrm. 79 (App. 1989), as holding that this Court has jurisdiction to modify sentences at any time. In Soares, the appellate division confirmed that, "In the absence of legislative action saying otherwise, it is the sentencing order, not the jailer or any member of the executive branch, which determines whether the prisoner is to be confined, and for how long." 4 FSM Intrm. at 82.

The Soares decision does not amount to a conclusion that the court has unfettered authority to amend its sentencing orders at any time. The appellate division simply concluded that a state chief of police has no authority to release from confinement national prisoners confined for violations of national law pursuant to national court sentencing orders. Id. at 83.

The sentencing authority of the trial judges of this Court flows from the Constitution, from statutes and from court rules. In absence of authority derived from one of those sources, judges of this Court are bound by their own sentencing orders arrived at through the normal exercise of criminal jurisdiction. The trial division of this Court has no power to amend its sentences at will.

Another, equally important, consideration compels the Court to deny this motion. The defendant has been convicted of sexually abusing several minors. His sentencing order calls for him to respond to, and cooperate with, any available psychiatric counseling. Upon review of the motion, the office of the justice ombudsman learned that no such psychiatric counseling has taken place up to this time.

Even assuming discretion to grant the motion for work release, the Court would not permit work release in absence of a showing that the defendant has availed himself of available counseling assistance. The office of the justice ombudsman has now made arrangements for psychiatric counseling to begin.

The motion seeking work release is denied, but without prejudice to the right of the defendant to file a similar motion when he can show that the Court has present authority to review and amend his sentence. Any such motion shall be accompanied by a showing that he has cooperated with and responded to psychiatric or mental health counseling for an appreciable period of time, and by a recommendation or statement of the counselor concerning the proposed release.

So ordered the 11th day of January, 1990.