
    PEOPLE OF THE TERRITORY OF GUAM v. TOMMY C. ALDAN, Defendant
    Criminal No. 76F-76
    Superior Court of Guam
    March 28, 1980
   ABBATE, Judge

DECISION AND ORDER

The matter came for hearing on a motion to vacate sentence in the above-entitled Court before the Honorable Paul J. Abbate on March 19, 1980. The defendant was represented by Assistant Public Defender Richard Pipes and the Territory of Guam was represented by Deputy Attorney General R. Barrie Michelsen.

The Court received testimony and oral arguments from both parties. Defendant's expressed purpose for vacating sentence was to allow him the opportunity to perfect an appeal of his conviction. The evidence offered showed that his original appeal in 1976 was not perfected as a result of a clerical error by the staff of the Court.

The Territory's arguments to the contrary, the Court could vacate and resentence defendant under its broad powers pursuant to §1.07(c) of the Criminal Procedure Code. The Court fears, however, that this procedure would not necessarily solve defendant's problem. Within the federal case law there are decisions where the appellate court did not accept a notice of appeal that resulted from procedural correction of a clerical error by the method being attempted herein. See In Re Morrow, (CATex. 1974) 502 F.2d 520.

The Court notes that defendant's proper and least problematic method to obtain his appeal is by way of writ of habeas corpus in the District Court, or in this Court.

It is the Court's opinion that to grant defendant's motion would not necessarily result in a fair and just solution to this clerical error.

For the above-stated reasons, the COURT DENIES the motion.

IT IS SO ORDERED.  