FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2016-536

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

DAVID WOLPHAGEN,
Defendant.
__________________________________________

ORDER DENYING MOTION FOR STAY OF EXECUTION PENDING REVIEW

Dennis K. Yamase
Chief Justice

Decided:  May 5, 2019

APPEARANCES:

For the Plaintiff:	Jonathan D. Buckner, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant:	David C. Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTE

Appellate Review - Criminal Cases - Stay; Habeas Corpus
6 F.S.M.C. 906 gives the court authority to stay the execution of a sentence pending appellate review, but nothing in 6 F.S.M.C. 906 specifically authorizes the court to grant a stay pending the review of a writ of habeas corpus petition, and there is no authority in Titles 4 and 6 of the 2014 FSM Code or the FSM Rules to stay execution of sentence pending a habeas corpus proceeding.  FSM v. Wolphagen, 22 FSM R. 237, 238 (Pon. 2019).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I.  Background

On June 28 and 29 of 2017, trial was held and the Court acquitted Defendant Wolphagen (herein “Defendant”) of Count II of the Criminal Information, retaliation for past official action, 11 F.S.M.C. 518, but found him guilty of Counts I and III, obstructing the administration of governmental actions, 11 F.S.M.C. 501, and tampering with public records or information, 11 F.S.M.C. 529.  On August 14, 2017, the Court sentenced Defendant to a total of three years of imprisonment, suspended except for 50 days.

Defendant appealed and filed a motion to stay execution, which was granted pending his appeal.  On October 26, 2018, the Appellate Court dismissed Defendant’s appeal without prejudice.  [Wolphagen v. FSM, 22 FSM R. 96 (App. 2018).]  On December 10, 2018, the Plaintiff Federated States of Micronesia (herein the “Government”) moved this Court to lift the stay. The Court granted the Government’s motion and ordered Defendant to begin serving his imprisonment on March 12, 2018.

On March 19, 2019, Defendant filed his Petition for Writ of Habeas Corpus and a Motion to Stay Execution Pending Review of Petition for Writ of Habeas Corpus.1  The motion to stay is made pursuant to 6 F.S.M.C. 906, which grants the Court the authority to stay executions pending appeal.  The Government filed its response to the motion to stay on March 28, 2019, and stated that there are no FSM Supreme Court rules or FSM Statutes that authorizes the Court to stay executions pending review of applications for writ of habeas corpus.

II.  Discussion

The Court agrees with the Government.  6 F.S.M.C. 906 gives the Court authority to stay execution pending appeal or review of the appellate court.  Nothing in this provision specifically authorizes this Court to grant a stay of execution pending review of a petition for writ of habeas corpus.  Even after an examination of Titles 4 and 6 of the 2014 FSM Code, and the FSM Rules, the Court fails to find any authority to stay executions pending a habeas corpus proceeding.

III.  Conclusion

Therefore, Defendant’s Motion for Stay Pending Review of Petition for Writ of Habeas Corpus is hereby denied.

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