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Government of Virgin Islands v. Warner

filed: February 6, 1995.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
ELVETH WARNER, APPELLANT IN NO. 94-7381; GOVERNMENT OF THE VIRGIN ISLANDS V. JACQUELINE MONSANTO-SWAN, APPELLANT IN NO. 94-7289



On Appeal from the Appellate Division of the District Court of the Virgin Islands -- St. Thomas. (D.C. Nos. 92-cr-00135 and 93-cr-00211).

Before: Sloviter, Chief Judge Scirica and Cowen, Circuit Judges.

Author: Cowen

COWEN, Circuit Judge.

Elveth Warner and Jacqueline Monsanto-Swan, in two related cases, appeal from orders of the Appellate Division of the District Court of the Virgin Islands that dismissed their appeals for lack of jurisdiction. These two cases present essentially the same issue of jurisdiction: whether the appellate division has jurisdiction to entertain an appeal of a defendant who has pled guilty where the defendant claims an error in the sentencing procedure. Accordingly, we will address the two cases together. Because the appellate division erred in determining that it lacked jurisdiction to hear these appeals, we will reverse.

I.

A. Government of the Virgin Islands v. Warner

Elveth Warner was arrested and charged with possession of a controlled substance in violation of V.I. Code Ann. tit. 19, § 607(a). He pled guilty to this charge on September 8, 1989. At sentencing, which did not take place until May 5, 1993, Warner contended that he was prejudiced by a lengthy delay between his plea of guilty and sentencing. According to the Government, the reason for the delay was that when this matter was first scheduled for sentencing, Warner did not appear and failed to inform either the court or his attorney as to his whereabouts.

The Territorial Court of the Virgin Islands sentenced Warner to a suspended 6 month period of incarceration, 400 hours of community service, a $700 fine, $25 in court costs, and placed him on supervised probation for one year.*fn1 On appeal to the Appellate Division of the District Court of the Virgin Islands, Warner renewed his argument that he was prejudiced by the lengthy delay between his plea and sentencing. The appellate division dismissed the appeal for lack of jurisdiction. This appeal followed.

B. Government of the Virgin Islands v. Monsanto-Swan

Jacqueline Monsanto-Swan was arrested and charged with misappropriating public monies to her own use in violation of V.I. Code Ann. tit. 14, § 1662(1), and altering a check in violation of V.I. Code Ann. tit. 14, § 791(1). Monsanto-Swan pled guilty to count seven of a nine count information in exchange for the Government dismissing the remaining eight counts. Count seven concerned the misappropriation of two checks worth an aggregate amount of $2,028.49. At the change of plea hearing before the Territorial Court of the Virgin Islands, the Government advised the court that it would make a recommendation for sentencing.

Shortly prior to the date of sentencing, the Government filed a motion seeking restitution from Monsanto-Swan pursuant to V.I. Code Ann. tit. 5, § 3721.*fn2 The Government moved the territorial court to require $96,586.42 in restitution, the total of the various amounts alleged in the information. Count seven, however, involved only the sum of $2,028.49. In her response to the motion for restitution, Monsanto-Swan agreed not to oppose the Government's request for the larger amount, provided the sentence be imposed pursuant to V.I. Code Ann. tit. 5, § 3721, and provided that the court permit a sufficient period of time for making restitution. The territorial court accepted the Government's motion as unopposed and supported by Monsanto-Swan, and stated that it was going to withhold sentence pursuant to § 3721 because Monsanto-Swan was expecting a baby. The court, however, required Monsanto-Swan immediately to begin making restitution.

Prior to the new date set for sentencing, Monsanto-Swan had already paid $8,000 in restitution to the Government. At sentencing, Monsanto-Swan contended that her agreement to pay the full amount of restitution entitled her to a sentence under § 3721, a sentence that would not include incarceration as a component. Over Monsanto-Swan's objection, however, the territorial court sentenced her to four years imprisonment.

Monsanto-Swan appealed this sentencing issue to the Appellate Division of the District Court of the Virgin Islands. The appellate division dismissed the appeal for ...


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