On Appeal from the United States District Court for the District of the Virgin Islands.
Seitz, Garth, and Higginbotham, Circuit Judges.
This appeal arises from a refusal by the District Court of the Virgin Islands to apply the enhanced sentence provision of the Habitual Criminal Information Act, 14 V.I.C. § 61(a) (Cum. Supp. 1982) (mandating minimum ten-year prison sentence), in sentencing convicted felon Clement David. The Government appeals the dismissal of the information or, in the alternative, petitions for a writ of mandamus ordering resentencing. Because we find no basis for the district court's refusal to enforce the statute, we will reverse the judgment of the district court and remand for further proceedings consistent with this opinion.*fn1
Clement David was named in a four-count information filed on July 28, 1983, charging him with two counts of grand larceny (14 V.I.C. § 1083), burglary third degree (14 V.I.C. § 444 (Cum. Supp. 1982)), and possession of stolen property (14 V.I.C. § 2101 (Cum. Supp. 1982)). Following a jury trial on November 2, 1983, David was convicted of two counts of grand larceny and of burglary third degree.
On December 2, 1983, the Government filed a habitual criminal information pursuant to 14 V.I.C. §§ 61-62 (Cum. Supp. 1982), informing the court that David had previously been convicted of a felony, attempted grand larceny, on June 23, 1982, in St. Thomas. A copy of this information was properly served on David. David was sentenced on December 7, 1983, at which time the Government brought to the Court's attention that the habitual criminal information had been properly filed and served and should be taken into consideration by the district court judge in sentencing David, according to the dictates of section 61(a).
The district court judge, however, dismissed the information, refused to postpone sentencing as requested by the prosecutor according to 14 V.I.C. § 62(d)(2), and then proceeded to sentence David to five years' imprisonment on each count, to be served concurrently. This timely appeal by the Government followed.
The first question we must address is whether this court has appellate jurisdiction. This court has previously held that "a statute authorizing appeal by the United States authorizes appeal by the Government of the Virgin Islands," Government of the Virgin Islands v. Christensen, 673 F.2d 713, 717 (3d Cir. 1982) (construing 18 U.S.C. § 3731 in particular), and section 3731 of Title 18 of the United States Code provides for appeals by the United States in criminal cases. Therefore, the Government has a right to appeal the decision of the district court in this case,*fn2 and we have jurisdiction to hear that appeal.
We next address the refusal of the district court to sentence David under the Habitual Criminal Information Act. Section 61(a) of Title 14 of the Virgin Islands Code provides, in relevant part:
Whoever, whether under the laws of the Virgin Islands, the United States or a state or territory thereof, or any other jurisdiction, has been convicted of an offense which would be a felony in the Virgin Islands, shall upon a subsequent conviction of a felony in the Virgin Islands be incarcerated for a term of imprisonment of ...