Government of Virgin Islands v. Marsham, 01-2662.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 293 F.3d 114
• Docket Number: No. 01-2662.,01-2662.
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. Warrington MARSHAM.
• Decision Date: 05 June 2002

293 F.3d 114 GOVERNMENT OF the VIRGIN ISLANDS, Appellant,
v.
Warrington MARSHAM. No. 01-2662. United States Court of Appeals, Third Circuit. Argued May 14, 2002. Opinion Filed June 5, 2002.

Page 115

Richard S. Davis, Maureen P. Cormier (argued), Assistant Attorneys General, Department of Justice, St. Thomas, U.S. Virgin Islands, for appellant.

Vincent A. Fuller, Jr. (argued), Medical Arts Complex, St. Thomas, U.S. Virgin Islands, for appellee.

Before: AMBRO, FUENTES and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

On this appeal, after we conducted a thorough examination of the relevant Virgin Islands statutes, we have concluded — contrary to the District Court of the Virgin Islands, Appellate Division (the "Appellate Division") — that in sentencing a criminal defendant, there is no statutory or decisional bar preventing restitution from being ordered when the defendant must also serve time in prison and is not on probation. Indeed, under 34 V.I.C. § 203(d)(3), it is the obligation of the sentencing court to order restitution providing, of course, that after an inquiry pursuant to the guidelines suggested in this opinion, restitution and the amount thereof is deemed appropriate.

I.

Defendant Warrington Marsham ("Marsham") pled guilty to three counts of grand larceny before the Territorial Court of the Virgin Islands (the "Territorial Court"), and was sentenced to 27 years and $13,583.33 in restitution. Marsham appealed his sentence to the Appellate Division. The three judge panel of the Appellate Division affirmed Marsham's sentence but vacated the order of restitution

Page 116

in a judgment dated June 13, 2001. The Government of the Virgin Islands (the "Government") appealed the Appellate Division's vacatur of restitution to this Court, filing a timely notice of appeal on June 21, 2000.¹

The issue presented in this appeal is whether the Territorial Court may order a convicted defendant to pay restitution without first sentencing him to probation. As noted above, for the reasons that follow, we will hold that it may. We will therefore reverse the Appellate Division's judgment vacating the order of restitution. In so holding, we commend to the sentencing court that before ordering restitution, it should engage, as a desirable (if not an essential) practice, in the inquiry we have recognized in Government of the Virgin Islands v. Davis, 43 F.3d 41, 47-48 (3d Cir.1994), albeit we did so there in a federal context.

II.

Between July 12, 1996 and September 8, 1996, Marsham went on a burglary spree in the Virgin Islands. The particulars of his crimes are not relevant to this appeal, so they will not be repeated in detail here. Suffice it to say that Marsham and various accomplices stole cash and goods from six businesses totaling almost $50,000 and attempted to rob a seventh business. Marsham was charged with seven counts of third degree burglary, six counts of grand larceny, one count of petty larceny and one count of attempted burglary.

Three accomplices — Henry Williams, Samuel Leader and Thomas Somersall — pled guilty, while Marsham opted for trial before the Territorial Court. Two days into trial — after hearing testimony of Leader and Williams — Marsham made two attempts to plead guilty to lesser charges, which the Territorial Court Judge, Ive A. Swan, rejected. Judge Swan finally accepted Marsham's last attempt, and Marsham pled guilty to three counts of grand larceny. In so doing, he faced a maximum of thirty years imprisonment.

On April 21, 1999, the Territorial Court sentenced Marsham to two consecutive 10 year sentences and one consecutive 7 year sentence for a total of 27 years. The Court also ordered that Marsham pay $13,583.33 in restitution.

Marsham appealed his sentence to the Appellate Division on April 26, 1999. In an opinion dated June 13, 2001, the Appellate Division affirmed the 27 year sentence, but vacated the order of restitution. The Appellate Division remanded the case to the Territorial Court, ordering only that the restitution order be vacated.

Both the Government and Marsham filed notices of appeal to this Court on June 21, 2001. The matter before us deals only with the Government's appeal of the Appellate Division's vacatur of the restitution order and does not address any of the issues raised in Marsham's appeal, which will be addressed by a subsequent panel of this Court.

III.

Before addressing the merits of the Government's appeal, we consider whether we have jurisdiction to hear this case. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 229 (3d Cir.1998) ("we have an independent obligation to examine our jurisdiction to hear this appeal."). The Appellate Division had jurisdiction as an appellate court under local law, 4 V.I.C. § 33, and the Revised Organic Act, 48 U.S.C. § 1613a(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 1294(3), which grant

Page 117

us appellate review over final decisions from the District Court of the Virgin Islands. Our jurisdiction rests as well on the Revised Organic Act, 48 U.S.C. § 1613a(c), which grants us appellate authority over the Appellate Division's final decisions on matters of local law. The issue here is whether the Appellate Division's decision is a final order.

In Isidor Paiewonsky Associates, Inc. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993), this Court noted that

[a] final decision is one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness, for giving effect to the judgment and leaves nothing to be done in the cause save to superintend, ministerially, the execution of the decree.

Id. at 150 (internal quotations omitted) (emphasis in original). This Court also acknowledged that the concept of "finality" under § 1291 be given a "`practical rather than a technical construction ...'" Id. (quoting Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir.1986) (internal quotations omitted)). In Marsham's case, despite the fact that the Appellate Division technically "remanded" the case for resentencing, there would be nothing left for the Territorial Court to do but to execute the Appellate Division's order. Since Marsham's 27 year sentence was affirmed in all other respects, the only action to be taken by the Territorial Court would have been simply to vacate its restitution order. In this way, the Appellate Division's order conclusively and finally determined the issue of Marsham's sentence and restitution, and sent the matter back simply...