APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (D.C. Crim. No. 77-130)
Before Seitz, Chief Judge, and Weis and Garth, Circuit Judges.
The defendant Winston Charles was charged under the Virgin Islands Criminal Code with attacking one Gilberto Gonzalez with a machete. The original information contained three counts. Count I charged Charles with assault with intent to murder. Count II charged him with two types of third degree assault. Count III charged Charles with the possession of a dangerous weapon during the commission of a crime of violence. Because Count III charged that Charles' assault on Gonzalez took place "during the commission of a crime of violence," it brought into play the "enhanced sentencing" provisions of 14 V.I.C. § 2251(a)(2)(B) and § 2254, which require that the defendant, if convicted, be incarcerated for no less than one half the maximum possible sentence.
At trial the information was amended. A portion of Count II was deleted. The portion deleted was the charge under 14 V.I.C. § 297(2) involving the crime of assaulting another with a deadly weapon (a machete). The balance of Count II which charged only an assault which inflicts serious bodily injury (14 V.I.C. § 297(4)), remained in the information. Hence Charles stood trial on three counts. He was acquitted on Count I (assault with intent to murder), but was convicted on Count II as modified (assault which inflicts serious bodily injury, 14 V.I.C. § 297(4)) and on Count III as originally drawn (possession of a dangerous weapon during the commission of a crime of violence, 14 V.I.C. § 2251(a)(2)(B)).
Charles was sentenced to concurrent three year sentences on Counts II and III. However, because Count III, as indicated, charged a violation of 14 V.I.C. § 2251, the enhanced sentencing provision of section 2254 applied, and the district court ordered that Charles serve no less than two and one half years in prison, stating that "(t)wo and one-half (21/2) years of the term imposed for Count III shall not be subject to any suspension, probation, parole or any form of release."*fn1
Charles appealed, attacking his conviction on the following grounds:
I It was error for the trial judge to prohibit the introduction of evidence pertaining to threats against the defendant's life made by close associates of the alleged victim;
II It was error for the trial judge to refuse to charge that the appearance of the alleged victim could be considered as evidence of whether the defendant had inflicted serious bodily injury;
III The trial judge's comments, during his instructions to the jury, concerning the evidence of a relationship between the alleged victim and Papo, constituted error and were prejudicial to the defendant;
IV It was error for the trial judge to refuse to instruct the jury with regard to the intent required in Count III;
V The jury's verdict as to Count III is improper as not consistent with the Information or the underlying statute, or as reached without proper instructions on the law.
After reviewing the entire record, we are satisfied that the aforesaid errors asserted by Charles, all of which seek a reversal of his convictions, have no merit. However, while we are persuaded that Charles' convictions must be affirmed, we are not persuaded that Charles was properly sentenced. Having raised and analyzed the issue of Charles' sentence with counsel at oral argument, we are now convinced that the sentence imposed on Count III must be ...