IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



THE PEOPLE OF THE VIRGIN ISLANDS Pineniite CASE NO ST-96-CR-0000382

Tith



ACTION FOR: 14 V1.0. 444/41)



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WARRINGTON E. MARSHAM ;



Defendant



NOTICE OF ENTRY OF

MEMORANDUM

OPINION AND ORDER



TO. VINCENT FULLER, JR., ESQ.

' ASSISTANT ATTORNEY GENERAL DOUGLAS DICK



JUDGES AND MAGISTRATE, SUPERIOR COURT

LIBRARIAN, IT DIVISION AND ORDER BOOK



Please take notice that on February 09, 2010 a(n) MEMORANDUM OPINION

AND ORDER dated February 05,2010 was entered by the Clerk in the



above-entitled matter.



Dated: February 09, 2010 Venetia H. Velazquez. Esa.

CLERK OF THE SUPERIOR COURT



Died Lid



AUDREY BRIN

COURT CLERK II

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



PEOPLE OF THE VIRGIN ISLANDS,

CRIMINAL NO. ST-96-CR-382

Plaintiff,

V.L Code Ann. tit. 14, §§ 1081, 1083, 444¢1)



WARRINGTON E. MARSHAM,

(D.O.B.: 11-09-74)



Defendant.



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MEMORANDUM OPINION AND ORDER



THIS MATTER came on for a hearing on November 6, 2009, on Defendant Warrington

Marsham’s Memorandum of Law on the Legality of Sentence of Probation. The People were

represented by Brenda Scales, Esq., Assistant Attorney General, who was appearing on behalf af

Douglas Dick, Esq., Assistant Attorney General. The Defendant was present and represented by

Vincent A. Fuller, Jr, Esq. After having heard the arguments and representations of counsel,

and considering the pertinent statutes and case law, the Court will set aside the Order of

probation and will not revoke Defendant’s probation because it was not legal to place Defendant

on Probation after imposing a period of incarceration lasting more than six (6) months.

Nevertheless, the Order of Restitution will stand and it will be up to the People or the victims —

Quality Foods and Western Auto — to take the steps reasonably necessary to collect said

restitution.



FACTS

In an Amended Judgment and Commitment dated December |, 2003, the Defendant in



this matter was sentenced to three terms of incarceration: two ten-year terms and one seven-year

Peanle af the Virgin Islands v. Warrington EL Marsham

Criminal No, ST-96-CR-382



Memorandum Opinion and Order



Page Dati



term, all with credit for time served and all to run concurrently. Upon completion of his

incarceration, Defendant was to be placed on supervised probation for three years, during which

ume Defendant was ordered to pay a court cost of Twenty-Five Dollars ($25.00) and to make

restitution in the amounts of Two Hundred Fifty Dollars ($250.00) to the Virgin Islands Water

and Power Authority, Five Thousand Three Hundred Dollars and Thirty-Three Cents ($3,300.33)

to Quality Foods, and Seven Thousand Dollars ($7,000.00) to Western Auto. Defendant was

brought before the Court for a hearing to determine whether or not his probation should be

revoked because he had failed to make restitution to the victims, |

Defendant now argues the legality of the imposed sentence. The People do not contest

that the Court cannot impose a period of probation after the termination of a sentence of

imprisonment exceeding six (6) months, as was done in this case. However, the People maintain

that the order of restitution should stand.

DISCUSSION

Order of Probation

The pertinent portion of V.1, Code Ann. tit, 3, § 3711(a) (1997) provides that:



Upon entering a judgment of conviction of any offense against the



laws of the Virgin Islands not punishable by life imprisonment, if



the maximum punishment provided for such offense ts more than



six months, the district court or a Superior Court, when satisfied



that the ends of justice and the best interest of the public as well as



the defendant will be served thereby, may impose a sentence in



excess of six months and provide that the defendant be confined in



a jail-type institution or a treatment institution for a period not



exceeding six months and that the execution of the remainder of



the sentence be suspended and the defendant placed on probation



for such period and upon such terms and conditions as the court

deems best.



' TL appears from the record that the restitution for the Virgin Islands Water and Power Authority (“WAPA") has

been paid or that WAPA is no longer seeking payment of restitution.

———



Peante of the Virgin Isiands vo Warrington E, Marsham

Criminal No. ST-96-CR-382



Memorandum Opinion and Order



Page J of4



In St Louis v. People of the VL, S. Ct Crim. No. 2007-086, 2008 WL 3605712, at *4

(V1, Oct, 10, 2008), the Virgin Islands Supreme Court held that, pursuant to § 371 1(a), the

Superior Court judges must “limit[] custodial incarceration to six months when a split sentence —

a sentence comprised of a period of probation after a term of incarceration — is imposed.”

Moreover, “[a] split sentence that imposes probation without suspending a portion of the

sentence 18 illegal,” Gov't ofthe Vf v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001} (citing US. v

Guevremont, 829 F.2d 423, 427 (3d Cir. 1987). “The Court may not require a defendant to

submit to probationary supervision unless the execution of part of his prison term is suspended

.... Absent such a suspension[,] the authority of the court over the defendant during the period

of probation is lacking.” thereby making the probation order mvalid. US. v. Stwpak, 362 F.2d

933, 934 (3d Cir. 1966).



“The court may correct an illegal sentence at any ime... .” Super. Ct. R. 136. In this

matter, Defendant’s sentence of incarceration far exceeded six (6) months. Furthermore, none of

that period was suspended. In the case of an illegal split sentence such as this, the Court can

correct the illegality in one of two ways: (1) impose a split sentence including both a custodial

and probationary term with the custodial portion partially suspended, or (2) vacate the provision

for probation. As the Defendant in this case has already completed his custodial term, and has

begun to serve his probationary term, the only appropriate option in this case is to vacate the

provision for probation. Because the imposition of the period of probation was illegal, and

therefore invalid, the Court cannot revoke Defendant's probation.



Order of Restitution

Because Defendant has failed to make restitution to the victims, the Office of Probation



sought to have his probation revoked. The legality of the order of restitution is not at issue in

People ofthe Virgin fstends vy. Warrington &. Marske

Criminal No, ST-96-CR-382



Memorandum Opinion and Order



Page daofd



this proceeding because the matter has already been resolved by the United States Court of

Appeals for the Third Circuit for this specific case. See Gov't of the Fi vo Marsham, 293 F.3d

114 (2002). The Defendant has informed the Court that he has been unable to make restitution

because he has to assist his mother financially and provide for his daughter. Defendant has

indicated that he would be in a better position to make restitution if the payments were stretched

over a long period of time. It will be up to the People or the victims — Quality Foods and

Western Auto — to take the steps reasonably necessary to collect said restitution.



Accordingly, it is hereby



ORDERED that the application for revocation of probation is DENIED; and 11 is further



ORDERED that the order of probation contained in the Court’s Amended Judgment and

Commitment dated December 1, 2003, is VACATED; and it is further



ORDERED that the remainder of the Amended Judgment and Commitment dated

December 1, 2003, including the order of restitution, shall remain unchanged; and it is further



ORDERED that a copy of this Order of Dismissal shall be served personally upon the

Defendant, Warrington E. Marsham, and copies thereof shall be directed to Vincent A. Fuller,



Jr., Esq., counsel for the Defendant, and to Douglas Dick, Esq., Assistant Attorney General.



DATED: February So , 2010



F “a Ae

/' JAMES S. CARROLL



II



Judge of the Superior Court

of the Virgin Islands



ATTEST:



VENETIA H. VELAZQUEZ, ESQUIRE

Clerk of the, Court



ROSALIE J. GRIFFIT

Court Clerk Supervisor =) iS fo