State v. Hern ( 2012 )

Electronically Filed
Supreme Court
SCWC-11-0000644
11-APR-2012
09:31 AM
NO. SCWC-11-0000644
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
DENNIS HERN, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-11-0000644; CASE NO. 1DTA-11-00302)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ICA ORDER DISMISSING APPEAL FOR
LACK OF JURISDICTION, AND REMANDING APPEAL TO ICA
(By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and
Circuit Judge Crandall, in place of Duffy, J., recused)
Petitioner/defendant-appellant Dennis Hern filed a
timely application for writ of certiorari on February 27, 2012 to
review the intermediate court of appeals' (ICA) February 14, 2012
Order Dismissing Appeal for Lack of Appellate Jurisdiction.
Petitioner appealed the district court's August 23, 2011 judgment
dismissing without prejudice Case No. 1DTA-11-00302. The ICA
concluded that the August 23, 2011 judgment was not a final
decision appealable pursuant to HRS § 641-12 (Supp. 2011) because
the judgment dismissing without prejudice is not "a decision on
the merits and does not include a sentence," citing State v.
Valiani, 57 Haw. 133, 134, 532 P.2d 75, 76 (1976), United States
v. Tsoie, 966 F.2d 1357, 1359 (10th Cir. 1992), and State v.
Kilborn, 109 Hawai#i 435, 442, 127 P.3d 95 102 (App. 2005).
HRS § 641-12 authorizes appeals from "all final
decisions and final judgments of district courts in criminal
matters." District court Case No. 1DTA-11-00302 was dismissed by
the district court, without prejudice, by judgment of August 23,
2011, for failure to commence trial within the six-month period
prescribed by HRPP Rule 48. The August 23, 2011 judgment
terminated the proceedings in Case No. 1DTA-11-00302.
Cf. State v. Kalani, 87 Hawai'i 260, 261-62, 953 P.2d 1358, 1359-
60 (1998) (finding jurisdiction to consider an appeal brought by
prosecution under HRS § 641-13(1), since "a dismissal without
prejudice is a final order -- it terminates the current case")
(emphasis in original)). It is the final decision of the
district court that is appealable by petitioner pursuant to HRS §
641-12. The ICA's reliance on Valiani, Tsoie and Kilborn was
misplaced.
Petitioner's application for writ of certiorari is
accepted. The ICA's February 14, 2012 Order Dismissing Appeal
for Lack of Appellate Jurisdiction is vacated. Petitioner's
appeal is remanded to the ICA for disposition.
DATED: Honolulu, Hawai#i, April 11, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Virginia L. Crandall
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