In a renewed appeal from convictions for driving under the influence of an intoxicating liquor in violation of 20 V.I.C. § 493(a)(1), and operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood, in violation of § 493(a)(2), after remand for resentencing in accordance with 14 V.I.C. §104, the appellant's brief raises the same constitutional argument - in many sections word-for-word - as his prior petition for rehearing. As explained in the March 15, 2013 Order denying that rehearing, the arguments could have been raised in the appellate brief on the original appeal, but-for whatever reason-were not raised. A defendant does not receive a second chance to support an argument he failed to support in a first appeal simply because he is resentenced, a rule establishing consistency between civil and criminal appeals in the Virgin Islands, promoting predictability and finality by notifying parties of the matters that remain open on remand and committing the rest to final resolution. Prohibiting a criminal defendant from raising a waived issue on remand for re-sentencing or as part of a second direct appeal would not forever foreclose relief, since the defendant may still seek post-conviction relief, such as through a local or federal petition for writ of habeas corpus. Since the defendant could have, but did not, raise his constitutional challenge to § 493(b)(1) as part of his original appeal, he cannot use the limited remand as a vehicle to reopen that waived issue. Accordingly, the Superior Court correctly declined to consider his argument on remand, and its April 15, 2013 Amended Judgment and Commitment is affirmed.
Supreme Court Of The Virgin Islands