ON APPEAL FROM JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX; CHRISTIANSTED JURISDICTION (D.C: Crim. Nos. 75-49 & 75-77).
Aldisert, Weis and Garth, Circuit Judges.
The Virgin Islands Habitual Criminals Statute was construed by the district court as constituting a separate offense requiring a separate sentence. We cannot agree. Accordingly, we are obliged to reverse and remand for correction of the defendant's sentence.
Defendant-appellant Joseph A. Henry was convicted by a jury on May 6, 1975 of three counts of robbery*fn1 and of one count of burglary*fn2 as charged in Criminal No. 75-49. After trial, but before sentencing, the Government of the Virgin Islands (Government) filed Criminal No. 75-77, charging Henry as a habitual offender under 14 V.I.C. § 61(a) (Supp. 1975).*fn3
Pursuant to the procedure established by 14 V.I.C. § 62 (Supp. 1975),*fn4 the district court found that Henry was a habitual criminal within the meaning of Section 61(a).*fn5 On May 30, 1975 Henry was sentenced separately on each of the two informations, No. 75-49 and No. 75-77.
On Criminal No. 75-49, Henry received a sentence of ten years on each of the four counts*fn6 to be served concurrently. The court directed that Henry commence serving these concurrent sentences immediately after completing service of a four year sentence on Criminal No. 75-17, which sentence had been previously imposed on Henry but is otherwise not relevant to this appeal.
On Criminal No. 75-77, the habitual criminal information, Henry received the minimum permissible sentence of ten years. This latter sentence was to be served consecutively to and after the ten year concurrent sentences imposed under Criminal No. 75-49. Thus Henry was subject to a total of twenty years imprisonment to follow the completion of the sentence he was then serving.
Henry filed timely notices of appeal from the sentences imposed in Criminal Nos. 75-49 and 75-77.*fn7 This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
Henry argues that the Habitual Criminals Statute, 14 V.I.C. § 61 (Supp. 1975), increases the maximum punishment which may be imposed upon a habitual criminal, but does not create a separate offense. His argument, when fully elucidated, proceeds as follows. Conviction on each of the robbery counts carried a maximum penalty of 15 years.*fn8 The burglary count was punishable by a maximum sentence of 20 years.*fn9 Hence, Henry could have been sentenced to a maximum of 15 years on each robbery count and 20 years on the burglary count. Henry argues that the Habitual Criminals Statute does not create a separate offense but rather substitutes for the 15 and 20 year maximum sentences prescribed by the robbery and burglary statutes, a different and more severe sentencing range. Where the defendant has "qualified" as an habitual offender, the new sentencing range for each of the robbery and burglary counts is a minimum of 10 years and a maximum of life imprisonment. Thus, Henry contends, although it would have been permissible for the district court to have sentenced him for a period of up to life under each of the four counts of which he was convicted, it was impermissible for the court to create still another and separate offense, i.e., an habitual offender offense, and to sentence him thereon to a ten year separate sentence as a habitual criminal.
Henry therefore asserts that because the district court erred in imposing a separate sentence rather than an increased sentence under the Habitual Criminals Statute, the separate sentence must be vacated, leaving only the ten year concurrent sentences to be served. The Government, which has avoided meeting this argument head-on, contends that the total twenty ...