Jano v Federated States of Micronesia [2004] FMSC 52; 12 FSM Intrm. 633 (App. 2004) (14 September 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Jano v FSM, [2004] FMSC 52; 12 FSM Intrm 633 (App. 2004)

MARTIN JANO
Appellant

vs.

FEDERATED STATES OF MICRONESIA
Appellee.

APPEAL CASE NO. P3-2000

OPINION

Decided: September 14, 2004

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Appellant:
Joey J. Sapelalut, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Rehearing
Regardless of what a post-appellate-judgment motion is called, it can only be considered a petition for rehearing, the only method of post-judgment relief allowed. Jano v. FSM, [2004] FMSC 52; 12 FSM Intrm. 633, 634 (App. 2004).

Appellate Review - Rehearing
A motion to reconsider judgment filed after the mandate has issued is considered a petition for rehearing, as well as a motion to enlarge time to file such a petition and a motion to recall the mandate. Such a petition may be denied in its entirety as untimely filed. Jano v. FSM, [2004] FMSC 52; 12 FSM Intrm. 633, 634 (App. 2004).

Appellate Review - Rehearing
Ordinarily, petitions for rehearing are summarily denied, but when the court considers that clarification may be helpful, reasons may be given. Jano v. FSM, [2004] FMSC 52; 12 FSM Intrm. 633, 634 (App. 2004).

Criminal Law and Procedure - National Crimes; Weapons
Even if Congress took no position on its jurisdiction based on Article IX, Section 2(a), the court is well within its power to determine jurisdiction based on this constitutional provision when it is not a situation where the action of the government is being challenged for attempting to implement a non-self-executing provision of the Constitution, but is one where the court determined what authority Congress had to enact statutes regulating the possession of firearms and ammunition. In doing so, the court did not usurp the powers of Congress. Jano v. FSM, [2004] FMSC 52; 12 FSM Intrm. 633, 635 (App. 2004).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On September 6, 2004, appellant Martin Jano filed a Motion to Reconsider Judgment Entered on July 30, 2004 and Memorandum in Support. The mandate in this case issued on August 27, 2004.

Regardless of what this motion is called, this can only be considered a petition for rehearing, the only method of post-judgment relief allowed. FSM App. R. 40(a). We therefore consider this to be a petition for rehearing, as well as a motion to enlarge time to file such a petition and a motion to recall the mandate.

A petition for rehearing in this case may have been filed by August 13, 2004. [Id.] The petition is therefore untimely filed. We hereby deny the petition in its entirety.

Ordinarily, petitions for rehearing are summarily denied, but when the court considers that clarification may be helpful, reasons may be given. Ting Hong Oceanic Enterprises v. FSM, [1996] FMSC 19; 7 FSM Intrm. 481, 482 (App. 1996). Jano’s contention in his petition that Congress has not addressed its powers under Article IX, Section 2(a) ignores or overlooks Congress’s position as specifically stated in its Standing Committee Report No. 5-128 (5th Cong., 2nd Reg. Sess., 1987) that its jurisdiction over firearms and similar weapons is not based upon Article IX, Section 2(p) alone, but that Congress can also regulate them pursuant to Article, Section 2(a) power to provide for the national defense. We quoted this committee report in our opinion. Jano v. FSM, [2004] FMSC 43; 12 FSM Intrm. 569, 573-74 (App. 2004).

Even if there were no position taken by Congress on its jurisdiction based on Article IX, Section 2(a), the court is well within its power to determine jurisdiction based on this constitutional provision and the appellant’s contention that it is non-self-executing is misplaced. This is not a situation where the action of the government is being challenged for attempting to implement a non-self-executing provision of the Constitution. Rather, the court determined what authority Congress had to enact statutes regulating the possession of firearms and ammunition. In doing so, the court did not usurp the powers of Congress.

Lastly, Jano misreads Fal v. FSM, [1997] FMSC 4; 8 FSM Intrm. 151, 154 (Yap 1997) and misunderstands our reference to it.

Accordingly, the petition for rehearing is hereby denied in its entirety.