Iwenong v Chuuk [1998] FMCSC 14; 8 FSM Intrm. 550 (Chk. S. Ct. App. 1998) (28 April 1998)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as Iwenong v Chuuk, [1998] FMCSC 14; 8 FSM Intrm. 550 (Chk. S. Ct. App. 1998)

ARUKOI IWENONG and
TOMINIC IWENONG,
Appellants,

vs.

CHUUK STATE,
Appellee.

CRIMINAL APPEAL NO. 1-93

OPINION

Argued: December 1, 1997
Decided: April 28, 1998

BEFORE:

Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court, presiding
Hon. Lyndon L. Cornelius, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae
**Directing Attorney, Micronesian Legal Services Corporation, Weno, Chuuk

APPEARANCES:

For the Appellants:
Michael Marco, trial counselor
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Appellee:
Eriano Eram, trial counselor
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Appeal and Certiorari
At the time of ordering a transcript, parties appealing to the Chuuk State Supreme Court appellate division must make satisfactory arrangements with the reporter for payment of the cost of the transcript. Iwenong v. Chuuk, [1998] FMCSC 14; 8 FSM Intrm. 550, 551 (Chk. S. Ct. App. 1998).

Appeal and Certiorari - Standard of Review
Insufficiency of the evidence argument is not available to criminal appellants when a transcript of all evidence relevant to such finding or conclusion is not included in the record on appeal. Iwenong v. Chuuk, [1998] FMCSC 14; 8 FSM Intrm. 550, 551 (Chk. S. Ct. App. 1998).

Appeal and Certiorari - Standard of Review
When appellants to the Chuuk State Supreme Court appellate division have made little or no effort to comply with any of the requirements of Appellate Rule 10, their appeals are due to be dismissed. Iwenong v. Chuuk, [1998] FMCSC 14; 8 FSM Intrm. 550, 551 (Chk. S. Ct. App. 1998).

Appeal and Certiorari - Stay; Criminal Law and Procedure - Sentencing
A sentence of imprisonment will be stayed if an appeal is taken to the Chuuk State Supreme Court appellate division and the defendant is released pending disposition of appeal if application for release is made in the first instance in the court appealed from. Iwenong v. Chuuk, [1998] FMCSC 14; 8 FSM Intrm. 550, 551-52 (Chk. S. Ct. App. 1998).

* * * *

COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

Appellants, Arukoi Iwenong and Tominic Iwenong jointly appeal their Trial Division convictions of the offenses of aggravated assault and assault with a dangerous weapon. Sentences were imposed on September 7, 1993 and a joint Notice of Appeal was filed on October 7, 1993.

The record indicates that the Appellants duly ordered a transcript for the appellate process but failed to comply with the provisions of Rule 10(b)(4), Chuuk State Supreme Court Rules of Appellate Procedure, which provides as follows: "At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the cost of the transcript."

No transcript of the testimony at the trial was ever prepared. No briefs were ever filed in the Appellate Division on behalf of the Appellants.

On appeal, the Appellants argue only that the evidence presented during their trial is insufficient to support the verdicts reached by the Trial Division. Insufficiency of the evidence to support the verdict is not available to the Appellants in view of the provisions of Appellate Rule 10(b)(2), which are as follows: "If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion."

Appellants have made little or no effort to comply with any of the requirements of Appellate Rule 10, governing the "Record on Appeal" and for that reason, their appeals are due to be dismissed.

On October 7, 1993, Appellants filed a Motion to Stay Execution of Judgment in the Appellate Division. The Appellate Division was without jurisdiction to entertain such a motion. Appellate Rule 8((c) provides that "Stays in criminal cases shall be had in accordance with the provisions of Rule 38(a) of the Rules of Criminal Procedure." Criminal Rule 38(a) provides, in part: "A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is released pending disposition of appeal pursuant to rule 9(b) of the Chuuk State Supreme Court Rules of Appellate Procedure."

Appellate Rule 9(b) provides in part: "Application for release after a judgment of conviction shall be made in the first instance in the court appealed from."

The Appellants filed their Motion for Stay of Execution of Sentence in the Appellate Division, hence, they were not entitled to a Stay of Execution due to their failure to comply with the applicable Court Rules cited above. Their Motions should have been filed "in the first instance in the court appealed from."

The joint appeal is dismissed.