FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K5-2008

STATE OF KOSRAE,
Appellant,

vs.

LIPAR J. LANGU,
Appellee.

___________________________________

ORDER OF DISMISSAL

Decided: September 2, 2008

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant: Snyder H. Simon, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

For the Appellee: Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review  Motions
 Motions may be decided without oral argument. Kosrae v. Langu, 16 FSM Intrm. 83, 86 (App. 2008).

Appellate Review  Notice of Appeal
 When the notice of appeal contains the names of both parties in its caption and designates one as the appellee, it is not necessary to repeat them in the text of the notice where one is referred to only as "appellee." Kosrae v. Langu, 16 FSM Intrm. 83, 86 (App. 2008).

Appellate Review  Notice of Appeal
 The timely filing of a notice of appeal is jurisdictional, but timely certification of service is not. Kosrae v. Langu, 16 FSM Intrm. 83, 86 (App. 2008).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
 An appeal shall not be dismissed for informality of form or title of the notice of appeal. Kosrae v. Langu, 16 FSM Intrm. 83, 86 (App. 2008).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
 When the notice of appeal only lacks the name, address, and phone number of the appellee's attorney and a certificate of service and the appellee cannot claim prejudice or that he was misled because the notice did not include his own counsel's name, address, and phone number and when the lack of a certificate of service would not prejudice him (although the lack of actual service could), the notice of appeal's defects are not of a jurisdictional nature that would require dismissal. Kosrae v. Langu, 16 FSM Intrm. 83, 86-87 (App. 2008).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
 While it is the filing of a notice of appeal that confers jurisdiction on the appellate court, strict adherence to Appellate Rule 3's requirements is not a prerequisite to a valid appeal. When the defect in the notice of appeal did not mislead or prejudice the appellee, and when the appellant's intention to appeal the order was manifest, the ineptness of the notice of appeal should not defeat the appellant's right to appeal. Kosrae v. Langu, 16 FSM Intrm. 83, 87 (App. 2008).

Appellate Review
 When an FSM Appellate Procedure Rule is identical or similar to a U.S. counterpart and the court has not previously construed some aspect of the rule, it may look to U.S. sources for guidance. Kosrae v. Langu, 16 FSM Intrm. 83, 87 n.1 (App. 2008).

Appellate Review  Notice of Appeal
 The FSM Appellate Rules require a criminal defendant to file his notice of appeal within ten days of entry of the judgment of conviction, but the FSM Appellate Rules have no provision for prosecution appeals. Kosrae v. Langu, 16 FSM Intrm. 83, 87 (App. 2008).

Appellate Review  Decisions Reviewable; Appellate Review  Notice of Appeal
 The Kosrae State Code provides that in a criminal proceeding the prosecution may appeal from the Kosrae State Court only when the court has held a law or regulation invalid, and it further provides that a notice of appeal must be filed within thirty days of receipt of notice of imposition of sentence or entry of the judgment, order or decree to be appealed from, or within a longer time to be prescribed by rule. In the absence of any other filing deadline, the FSM Supreme Court will use the thirty-day deadline of Kosrae Code section 6.401 for prosecution appeals from the Kosrae State Court. Kosrae v. Langu, 16 FSM Intrm. 83, 87 (App. 2008).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
 When the State Court's return of service shows that the Kosrae Attorney General's Office was served the judgment of conviction on June 4, 2008 and when, using the Kosrae statute's thirty-day deadline, which runs from date of receipt of the order instead of date of entry, the June 30, 2008 notice of appeal is timely when measured from the June 4th service date, the motion to dismiss cannot be granted on the ground the appeal was filed too late. Kosrae v. Langu, 16 FSM Intrm. 83, 87 (App. 2008).

Appellate Review  Decisions Reviewable
 Where the Kosrae Code provides that government appeals in a criminal proceeding are limited to when the Kosrae State Court has held a law or regulation invalid, and further provides that on a government appeal from a criminal proceeding the appellate court may not reverse a finding of not guilty, but may reverse determination of invalidity of a law or regulation; and where the prosecution's basic claim on appeal is that the trial court ought to have found that the defendant had the requisite intent required for the charge of aggravated assault, and that the trial court's interpretation that the evidence was insufficient to prove the required intent was wrong, it is not the type of prosecution appeal authorized by the Kosrae statute, and the FSM Supreme Court therefore lacks jurisdiction over it. The motion to dismiss will be granted on this ground. Kosrae v. Langu, 16 FSM Intrm. 83, 87-88 (App. 2008).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

 This comes before us on defendant Lipar J. Langu's motion to dismiss the prosecution's appeal from the Kosrae State Court's acquittal of Langu on the charge of aggravated assault. We grant the motion. Our reasoning follows.

I. Procedural History

 On May 7, 2008, after the presentation the prosecution's case, the trial court, on Langu's motion, acquitted him of the charge of aggravated assault. (At the end of trial, Langu was found guilty of assault and battery.) The trial court ruled that there was insufficient evidence to convict Langu of aggravated assault because the evidence was insufficient to show that Langu had the intent (requisite for aggravated assault) to kill or inflict grievous bodily harm when he hit the victim several times with the flat side of a machete. The Kosrae State Court entered its Judgment of Conviction; Sentencing Order on May 26, 2008. The State was served a copy of the order on June 4, 2008.

 On June 30, 2008, the State filed its Notice of Appeal, asserting that the trial court had committed an error of law in the judgment by ruling that Langu was not guilty of aggravated assault when he struck the victim with a machete. On July 8, 2008, Langu filed his motion to dismiss the appeal. On July 25, 2008, the State moved for an enlargement of time to respond. Because of the possible importance of the issues raised by the motion, the State was given until August 18, 2008, to respond.

II. Langu's Motion

 Langu moves to dismiss the appeal on three grounds: 1) the notice of appeal was defective; 2) the notice of appeal was filed too late; and 3) the court lacks jurisdiction over this type of appeal by the prosecution. The State did not file a response, which may indicate its abandonment of the appeal. "Motions may be decided without oral argument." Christian v. Urusemal, 14 FSM Intrm. 291, 293 (App. 2006).

A. "Defective" Notice of Appeal

 Langu contends that the notice of appeal should be stricken as defective because it fails to name all the parties in the proceeding appealed from; does not contain the names, addresses, and telephone numbers of the parties' counsel; and lacks a certificate of service on other parties, as required by FSM Appellate Rule 3(c). Rule 3(c) provides:

 The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; shall name the Federated States of Micronesia Supreme Court appellate division as the court to which the appeal is taken, shall provide the names of all parties in the proceeding appealed from, as well as the names, addresses and telephone numbers of the legal counsel in that proceeding, and shall include certification, as specified in Rule 25(d), of service upon all other parties. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.

 The notice of appeal does contain the names of both parties in its caption and designates Langu as the appellee. Since it does, it was not necessary to repeat them in the text of the notice where Langu is referred to only as "appellee." The notice also specifies the judgment and order appealed from, and contains, under the Assistant Kosrae Attorney General's signature, the name, address, telephone number, and e-mail address of the appellant's attorney. The notice only lacks, the name, address, and phone number of Langu's attorney and a certificate of service.

 The rule itself says, "An appeal shall not be dismissed for informality of form or title of the notice of appeal." FSM App. R. 3(c). The timely filing of a notice of appeal is jurisdictional, Goya v. Ramp, 13 FSM Intrm. 100, 104-05 (App. 2005); Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002) (since the requirement that an appeal be timely filed is mandatory and jurisdictional, an untimely filed appeal must be dismissed), but timely certification of service is not. Langu cannot claim prejudice or that he was misled because the notice did not include his own counsel's name, address, and phone number. Also, the lack of a certificate of service would not prejudice Langu (although the lack of actual service could, but we know there was actual service since Langu promptly moved to dismiss). Thus, although "defective," the notice of appeal's defects are not of a jurisdictional nature that would require dismissal.

 While it is the filing of a notice of appeal that confers jurisdiction on the appellate court, strict adherence to Appellate Rule 3's requirements is not a prerequisite to a valid appeal. Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 681-82, 116 L. Ed. 2d 678, 685 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S. Ct. 2405, 2407-08, 101 L. Ed. 2d 285, 290-91 (1988). When the defect in the notice of appeal "did not mislead or prejudice" the appellee, and when the appellant's intention to appeal the order "was manifest," the "inept[ness]" of the notice of appeal should not defeat the appellant's right to appeal. Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 229, 9 L. Ed. 2d 222, 225 (1962).

 Thus, the notice of appeal's defects are not enough to dismiss this, or any other, appeal.

B. Late Notice of Appeal

 Langu contends that this appeal is filed too late and that the State never sought an enlargement of time to appeal. Langu notes that the trial court order was made [orally] May 7, 2008 and attaches the written judgment entered May 26, 2008, and states that the June 30, 2008 notice was thus too late because it was more than thirty (30) days after the order.

 The FSM Appellate Rules require a criminal defendant to file his notice of appeal within ten days of entry of the judgment of conviction. FSM App. R. 4(b)(1). The FSM Appellate Rules have no provision for prosecution appeals. The Kosrae State Code provides that "in a criminal proceeding" the prosecution may appeal from the Kosrae State Court "only when the Court has held a law or regulation invalid." Kos. S.C. § 6.404(5). The Kosrae Code further provides that a notice of appeal must be filed "within thirty days of receipt of notice of imposition of sentence or entry of the judgment, order or decree to be appealed from, or within a longer time to be prescribed by rule." Kos. S.C. § 6.401. In the absence of any other filing deadline, the court will use the thirty-day deadline of Kosrae Code section 6.401.

 The State Court's return of service shows that the Kosrae Attorney General's Office was served the judgment of conviction on June 4, 2008. Using the Kosrae statute's thirty-day deadline, which runs from date of receipt of the order instead of date of entry, the June 30, 2008 notice of appeal is timely when measured from the June 4th service date. The motion to dismiss therefore cannot be granted on the ground it was filed too late.
C. Lack of Jurisdiction over this Type of Appeal

 Langu also contends that the appeal should be dismissed because the court lacks jurisdiction over the subject matter since the Kosrae state government, in a criminal case, is only permitted to appeal trial court decisions determining that a law or regulation is invalid.

 The Kosrae Legislature enacted the Kosrae Code, which provides that government appeals "in a criminal proceeding" are limited to "only when the Court has held a law or regulation invalid." Kos. S.C. § 6.404(5). It further provides that "[o]n a Government appeal from a criminal proceeding the appellate court may not reverse a finding of not guilty, but may reverse determination of invalidity of a law or regulation." Kos. S.C. § 6.403(3). The Legislature's intent is clear  that the prosecution cannot appeal factual findings or acquittals based on the trial court's factual findings, but that is what the prosecution is trying to do here.

 The trial court found that Langu's hitting the victim several times with the flat side of a machete did not prove beyond a reasonable doubt that Langu intended to kill the victim or inflict grievous bodily harm on him, and so acquitted him on that charge. Kosrae does not claim that a law or regulation was improperly held invalid. Its basic claim is that the trial court ought to have found that Langu had the requisite intent  to kill or inflict grievous bodily harm  required for the charge of aggravated assault, and that the trial court's interpretation that the evidence was insufficient to prove the required intent was wrong. It is thus not the type of prosecution appeal authorized by the Kosrae statute.

 Therefore, the FSM Supreme Court lacks jurisdiction over this appeal. The motion to dismiss is granted on this ground.

III. Conclusion

 Accordingly, the State of Kosrae's appeal in this matter is dismissed because this type of prosecution appeal has not been authorized by Kosrae statute.

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