Reselap v Chuuk [1998] FMCSC 22; 8 FSM Intrm. 584 (Chk. S. Ct. Tr. 1998) (4 December 1998)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as Reselap v Chuuk, [1998] FMCSC 22; 8 FSM Intrm. 584 (Chk. S. Ct. Tr. 1998)

MINOR RESELAP,
Appellant,

vs.

CHUUK STATE,
Appellee.

CRIMINAL APPEAL NO. 1-95

ORDER DISMISSING APPEAL

Camillo Noket
Associate Justice

Decided: December 4, 1998

APPEARANCES:

For the Appellant:
Michael Marco, trial counselor
Office of the Public Defender
P.O. Box 745
Weno, Chuuk FM 96942

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

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HEADNOTES

Appeal and Certiorari
An appellant who desired to proceed on an appeal in forma pauperis but failed to file an affidavit showing his inability to pay and who failed to bring his in forma pauperis motion to the attention of the trial division, is deemed to have abandoned his request or at least waived any right he may have had to proceed in forma pauperis. Reselap v. Chuuk, [1998] FMCSC 22; 8 FSM Intrm. 584, 585-86 (Chk. S. Ct. App. 1998).

Appeal and Certiorari; Appeal and Certiorari - Briefs and Record
When a transcript of the evidence in the Chuukese language has been on file for three years and the appellant has had access to the transcript for the purpose of prosecuting his appeal during the entire time and when nothing in the record indicates that the appellant requested an English language transcript a motion to enlarge time to file brief and to postpone oral argument on the ground that an English language transcript has not been received will be denied. Reselap v. Chuuk, [1998] FMCSC 22; 8 FSM Intrm. 584, 586 (Chk. S. Ct. App. 1998).

Appeal and Certiorari; Constitutional Law - Chuuk; Translation
Because the Chuuk Constitution provides that Chuukese is the state language, but both Chuukese and English are official languages, a criminal appellant in the Chuuk State Supreme Court has no constitutional right to a transcript in both Chuukese and English. Reselap v. Chuuk, [1998] FMCSC 22; 8 FSM Intrm. 584, 586 (Chk. S. Ct. App. 1998).

Appeal and Certiorari; Criminal Law and Procedure
When, in a three-year old criminal appeal, notice was served requiring appellant's opening brief to be filed and served by a certain date and the notice further stated that failure to do so would be grounds for dismissal of the appeal, no brief was ever filed and a motion bordering on frivolous was filed for more time, the motion may be denied and the case is remanded to the trial division for additional proceedings, including sentencing, as is provided for by law. Reselap v. Chuuk, [1998] FMCSC 22; 8 FSM Intrm. 584, 586-87 (Chk. S. Ct. App. 1998).

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COURT'S OPINION

CAMILLO NOKET, Associate Justice:

This case comes before the Court and is acted upon by a single Justice pursuant to the authority specified by Article VII, § 5(b), Chuuk State itution aion and § 37 of thuk State Judiciary iary Act of 1990.

The Appellant is represented by the Chuuk Branch of the FSM Office of the Public Defender. Notice of Appeal from the judgment of conviction of lant for the offense of Sexf Sexual Assault was duly filed on December 27, 1995. On this same date, December 27, 1995, Appellant filed motions for a Stay of Execution of Judgment, for Bail Pending Appeal, to Proceed in Forma Pauperis for preparation of the transcript and a Designation of Record for his appeal. On December 28, 1995, the Trial Division granted Appellant's motion for A Stay of Execution of Judgment and a conditional release on bail pending appeal.

However, there is no indication in the record that in support of his motion to proceed in forma pauperis, Appellant filed an affidavit showing his inability to pay costs and fees for his appeal or give security therefor as required. There is nothing in the record in this case showing that Appellant brought his Motion to Proceed in Forma Pauperis to the attention of the Trial Division and no order granting this motion appears in the record.

Also, Appellant failed to comply with any of the other provisions of Rule 24(a) CSSC Rules of Appellate Procedure which require:

A party who desires to proceed on appeal in forma pauperis shall file in the court appealed from a motion for leave so to proceed, together with an affidavit showing his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal.

Appellant is deemed to have abandoned this request or at least waived any right he may have had to proceed in Forma Pauperis by his failure to comply with the provisions of Rule 24, supra.

Although Appellant is not entitled to proceed in Forma Pauperis, a transcript of the evidence in the Chuukese language was filed in the Office of the Clerk of Court on March 30, 1996, almost 3 years previously. The Appellant has had access to the transcript for the purpose of prosecuting his appeal during the entire time.

The Appellant now moves the Appellate Division for an order enlarging the time for filing the Appellant's brief and to postpone the oral argument now scheduled for December 9, 1998.

The sole ground upon which Appellant's motion is based is that: "Appellant herein has only received the Chuukese Transcript but could not identify whether both transcripts in English and Chuukese are same or different."

Viewed in its entirety, the Appellant's motion borders on being frivolous and filed only for delay. Appellant's motion cites no authority and contains no argument in support of his right to a transcript in both English and Chuukese and this Court has found none.

Moreover, the Court has made an exhaustive search of the entire record in this case and finds nothing to indicate that Appellant has requested a transcript in the English language, although the Chuukese language transcript has been completed for almost three years.

Additionally, Article XI, § 6, Constitution of Chtate, ate, provides that "Chuukese is the State language, but both Chuukese and English are official languages." It is clear that Appellant has no constitutional right to a transcript in both ese and English.

The record in this case reflects that the Notice of Oral Argument and Briefing Schedule was served on counsel for Appellant on August 31, 1998. Pursuant to Rule 31, CSSC Rules of Appellate Procedure, this notice required Appellant's opening brief to be filed and served on later than October 10, 1998. The notice further states that failure to do so would be grounds for dismissal of the appeal.

Therefore, based on the foregoing analysis, the Motion for Enlargement of Time and Postponement of Oral Argument is due to be denied and the case is remanded to the Trial Division for additional proceedings, including sentencing, as is provided for by law.

It is so ordered.