1 MILR (Rev.) 87

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.CT CRIM. No. 86-01
(High Ct. Crim. No. 1986-021)

REPUBLIC OF THE MARSHALL ISLANDS,
Respondent,

-v-

BOKMEJ BOKMEJ,
Appellant.

APPEAL FROM THE HIGH COURT

NOVEMBER 27, 1987

BURNETT, C.J.
GUNATILAKA, A.J., (sitting by designation)

SUMMARY:

The Supreme Court held that any possible error by the trial court in proceeding to sentencing without a probation report was cured when a successor judge considered the report on a motion to reduce the sentence. The Supreme also upheld the trial court's restitution order against a claim that it was excessive saying the trial court was not shown to be "clearly erroneous." The Supreme Court did, however, vacate as a condition of suspension of sentence a requirement of restitution in an unrelated case.

DIGEST:

1. CRIMINAL LAW AND PROCEDURE – Sentencing – Conditions for Suspension: The trial court cannot impose as a condition of the suspension of a sentence restitution in an unrelated case.

OPINION OF THE COURT BY BURNETT, C.J.

This appeal is taken from judgment and sentence entered upon a plea of guilty to a charge of Malicious Mischief, 11 TTC § 951. The trial court, having first denied a defense request for a report from the Probation Officer, imposed a six (6) month suspended sentence, conditioned upon payment of One Thousand ($1,000) restitution for five (5) pandanus trees which he had destroyed.

Two grounds for appeal are set out:

1) That it was error to impose sentence without the requested probation report, and

2) The restitution ordered was "clearly" excessive.

A later motion to reduce the sentence, brought before the successor judge, was denied; this followed a post-sentence report by the probation officer.

As to the first issue presented, any error that might have been urged on the basis of proceeding to judgment without a report as to proper restitution was cured by the successor judge's call for such report following which he refused to modify the sentence.

As to the second issue, we are unable to say that the trial court's finding was "clearly erroneous." Sec. 66(2), Judiciary Act, 1983. Even with the benefit of a probation report, the second judge was unwilling to disturb the original finding.

The probation report reference to what "land owners in other situations" ask per tree is of no assistance. The trial judge had testimony before him as to the age of the destroyed trees. He, himself an "island boy," must necessarily have brought his personal understanding of the loss to bear. "What we know as men, we cannot put aside as judges."

[1] One element of the judgment and sentence (not raised by counsel) must be set aside. As an additional condition of suspension in this matter, the court ordered restitution in a completely unrelated case. This is obvious error, and cannot stand.

With that exception, we find no reversible error, and the judgment of the trial court is affirmed.