APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS (D.C. Criminal No. 77-64).
Adams, Rosenn, and Hunter, Circuit Judges. Hunter, Circuit Judge, concurring.
This case arises from a refusal by the District Court of the Virgin Islands to apply the enhanced sentence provision of the Habitual Criminal Information Act, V.I. Code Ann. tit. 14 § 61(a) (Cum. Supp. 1975),*fn1 in sentencing convicted felon Paul Testamark. The Government appeals the dismissal of the information or, in the alternative, petitions for a writ of mandamus ordering resentencing. We deny the Government's petition for mandamus, and we affirm the order of the district court.*fn2
On March 29, 1977, the defendant was found guilty by a jury of assault in the first degree with intent to commit rape.*fn3 Immediately after the jury was discharged, approximately 6:45 P.M., the trial judge set sentencing for 8:30 A.M. the next morning. Before leaving the courtroom, the government attorney handed the courtroom clerk an habitual criminal information, prepared pursuant to V.I. Code Ann. tit. 14 § 62(a) (Cum. Supp. 1975),*fn4 and at the same time served a copy on defense counsel.
The next day, the court reconvened for sentencing at 8:30 A.M. The defendant's attorney informed the court that he had been served with the information, to which the trial judge replied, "disregard it and just address yourself to the sentencing for the offense which he was convicted [of] yesterday." The government attorney also called the judge's attention to the information, but the judge refused to consider it, later stating during the course of the sentencing hearing:
The court declines to treat this defendant as an habitual offender not because he does not have the number of convictions which will support that treatment and not because one or more of the crimes of which he has been involved does not involve violence but rather because Mr. Testamark is so well known to the court in the sense of his frequently being before the court for anti-social behavior that I cannot in good conscience give him that treatment because I have no hesitation in saying that all of us, this government, this community must share some of this young man's guilt.
This young man is a mentally troubled person . . . .
The court thereupon sentenced the defendant to ten years of imprisonment, during which he was to receive psychiatric treatment. Two days later, on April 1, 1977, the Government moved to vacate the sentence, on the ground that the sentence had been imposed illegally because the judge failed to make the determinations required by V.I. Code Ann. tit. 14 § 62(d)(2) (Cum. Supp. 1975) before disregarding any habitual criminal information.*fn5
During all this time, the information had not been before the judge; apparently, the courtroom clerk had inadvertently tucked it into the case file without having docketed and marked it filed. It was not until April 19 that the information was formally filed with the Clerk of the Court. On April 21, the court denied the Government's motion to vacate, finding no showing of illegality of the sentence and that the information had not been properly filed with the Clerk of the Court prior to sentencing as required by statute.*fn6
On May 9, the court entered a memorandum opinion and order dismissing the information. The opinion declared the Virgin Islands Habitual Criminal Act unconstitutional on the grounds of arbitrary enforcement and vagueness. The order stated simply that dismissal of the information was based on the untimely filing. It is from the May 9 order that the Government appeals.
A. The Government's Petition ...