S. Ct. Crim. No. 2012-0077

Considering an appeal from the Superior Court's February 3, 2012 Judgment and Commitment adjudicating the defendant guilty of third degree assault in violation of 14 V.I.C. § 297(2) and use of a deadly weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2)(B) and imposing separate sentences for these offenses to be served consecutively, the defendant's argument that the Revised Organic Act of 1954, the Fifth Amendment of the United States Constitution, and 14 V.I.C. § 104 precluded the Superior Court from imposing separate punishments is rejected. Congress did not intend to confer greater double jeopardy protections upon the Virgin Islands than are provided under the Fifth Amendment to the Constitution of the United States, and in enacting 14 V.I.C. § 2251, the Virgin Islands Legislature intended to establish an exception to the general rule set forth in 14 V.I.C. § 104 and allow individuals to be punished for both violating 14 V.I.C. § 2251 and for committing the underlying crime of violence. In addition, because 14 V.I.C. § 104 and 14 V.I.C. § 2251 are not ambiguous, the rule of lenity does not apply so as to render the latter statute void. However, because restitution, when ordered as part of a criminal case, is part of the defendant's sentence, and because fixing the specific amount of restitution is a judicial act under Virgin Islands law as provided in 34 V.I.C. § 203(d)(3), the Superior Court erred when it delegated to the victim the authority to set the restitution amount. Thus, the matter is remanded to the Superior Court with respect to the restitution award. In addition, since 14 V.I.C. § 2251 allows either consecutive or concurrent sentences to be imposed, and it cannot be determined from the record whether the Superior Court imposed a consecutive sentence because it fully adopted the prosecution's position that it lacked the discretion to order a concurrent sentence, or if it was aware of applicable case law permitting it to impose either a concurrent or a consecutive sentence and simply exercised its discretion to impose the latter, on remand the Superior Court is authorized to correct the defendant's sentence in the event it imposed the consecutive sentences out of a mistaken belief that 14 V.I.C. § 2251 created a mandatory duty to impose consecutive sentences. The defendant's convictions are affirmed, but the February 3, 2012 Judgment and Commitment is vacated and the matter is remanded for re-sentencing.