APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX D.C. Crim No. 80-00059-02
Before Hunter, Van Dusen and Sloviter, Circuit Judges.
1. Defendant/appellant Reviere was charged with one count of first degree burglary, four counts of first degree robbery (14 V.I.C. § 1862(2)), seven counts of first degree assault (14 V.I.C. § 295(3)), one count of unauthorized use of a motor vehicle, and one count of possession of an unlicensed firearm during the commission of a crime. All fourteen counts arose out of the same series of events.
2. A jury convicted defendant on all fourteen counts. Judge Newcomer sentenced defendant to ten years imprisonment on the burglary count (Count 1) and to five years imprisonment on the firearms count (Count 14), and to a suspended sentence and five years probation on the remaining twelve counts (Counts 2-13; four counts of robbery, seven of assault, one of unauthorized use of an automobile). The five year probation period was to run consecutively with the sentence on Count 1. The sentences on Counts 1 and 14 were concurrent.
3. On appeal, defendant contends, inter alia, that his convictions on four of the seven assault counts should be vacated, because they merged with the four robbery counts.*fn1 For the reasons which follow, we will affirm.
4. Defendant was charged with assault in the first degree upon Victor Jones, Alfredo Cotto, Jose Alvarez, Carlos Encarnacion, Orlando Diaz, Raul Torrens, and Esmonde Martin. Defendant was charged with first degree robbery of Victor Jones, Alfredo Cotto, Carlos Encarnacion, and Orlando Diaz. He was convicted on all of those charges. On appeal, he contends that first degree assault is a lesser included offense of first degree robbery, and that his convictions for assaulting Jones, Cotto, Encarnacion, and Diaz violate statutory intent and the double jeopardy clause and should therefore be vacated.
5. There is no need in this case for this court to reach the question of whether first degree assault is a lesser included offense of first degree robbery. Assuming, without deciding, that first degree assault is a lesser included offense of first degree robbery, the trial court's action in entering a general sentence on Counts 2-13 was proper and requires no action on appeal.
6. In United States v. Corson, 449 F.2d 544 (3d Cir. 1971) (en banc), this court dealt with the question of how to apply the United States Supreme Court decision in Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957). In Prince, the Court
was faced with a situation in which the district court had sentenced a defendant convicted of a single bank robbery to 20 years for robbery and 15 years for entering to be served consecutively. Interpreting the statutory scheme to resolve an ambiguity in favor of leniency the Supreme Court held that when it established lesser included offenses in the Bank Robbery Act, Congress did not intend to permit the pyramiding of penalties imposed for a single robbery.
449 F.2d at 549. *fn2 This court decided in Corson that
the only practicable way of implementing Prince is to impose a general sentence on all counts for a term not exceeding the maximum permissible sentence on that count which carries the greatest maximum sentence.
Id. at 551. We vacated the sentence in its entirety and remanded the case for entry of a general sentence on all three counts. Id. at 552. In the course of our opinion, we explicitly rejected the "merger theory" according to which, after conviction on all counts, the conviction for the lesser included offense would cease to exist as a punishable offense. Id. at 547, 549-50.*fn3 We also rejected the "court's intention" theory according to which the longest sentence would stand, irrespective of whether it was on the most inclusive count. Id. at 547, 550.*fn4
7. Here, the trial court entered one suspended sentence with one term of five years probation for the four robbery counts, the seven assault counts, and the automobile count. This is the equivalent of the general sentence mandated by Corson. The five years probation does not exceed the maximum permissible sentence on the count carrying the gravest ...